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en-usTechdirt. Stories filed under "cbp"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Mon, 5 Dec 2016 10:47:00 PSTTurkey Using US Border Agents' Harassment Of Canadian Journalist To Defend Jailing Over 100 JournalistsMike Masnickhttps://www.techdirt.com/articles/20161205/00381336187/turkey-using-us-border-agents-harassment-canadian-journalist-to-defend-jailing-over-100-journalists.shtml
https://www.techdirt.com/articles/20161205/00381336187/turkey-using-us-border-agents-harassment-canadian-journalist-to-defend-jailing-over-100-journalists.shtmldetained, had his devices confiscated and searched, and then was denied entry into the US. And, of course, as we've seen before in similar stories, Homeland Security's response to these sorts of stories is to shrug and basically say "we don't have to tell you anything."

Turkey’s General Directorate of Press and Information (BYEGM) on Friday accused countries critical of Turkey’s media environment of turning a blind eye to press freedoms in their own jurisdictions.

Research compiled by the body questioned Western states’ claims that freedom of the press was unlimited in their countries.

Recalling that among the countries frequently criticizing Turkey were France, Germany, the U.K., Sweden, Spain, the Netherlands and the U.S., the BYEGM research questioned whether journalists and other media workers were able to work freely in these nations.

The research presented examples of constraints and censorship faced by media workers in those countries.

And, of course, one of the examples used, is what US Homeland Security did to Ou, among other examples, including the arrests of journalists covering the protests in Ferguson, Missouri, two years ago.

Friday’s BYEGM statement recalled an incident in October involving a Canadian journalist called Edward Ou who wanted to shoot video of Native Americans protesting against a pipeline planned for Dakota state in the U.S.

"He [Ou] was not allowed to enter the U.S.," the BYEGM said, adding: "Edward Ou was held at the border for six hours and during this time his telephone and cameras were confiscated.”

In the U.S. “14 journalists, including Anadolu Agency, Die Welt and Bild correspondents” were arrested amid unrest in Ferguson, Missouri, following the fatal police shooting of a black man in 2014.

The BYEGM went on to state: "In Baltimore incidents, City Paper's photo editor JM Giardano was beaten by the police and photographer Sait Serkan Gurbuz, who was working for Reuters, was taken into custody.”

In July 2016 the Middle East correspondent of the Wall Street Journal, Maria Abi-Habib, “was taken into custody by the U.S. Department of Homeland Security on the grounds that she was a journalist 'traveling dangerous locations'".

Of course, there's a massive difference in the (yes, wrongful) arrests and detainment of journalists in the US over reporting with the purposeful jailing of journalists, including charging some with horrific crimes, in Turkey. But by not stopping this ridiculous bad behavior, such as what happened to Ou with border agents, we're handing Turkey and other authoritarian regimes an easy excuse to continue their efforts to completely eradicate a free and open press.

Award-winning Canadian photojournalist Ed Ou has had plenty of scary border experiences while reporting from the Middle East for the past decade. But his most disturbing encounter was with U.S. Customs and Border Protection last month, he said.

On Oct. 1, customs agents detained Ou for more than six hours and briefly confiscated his mobile phones and other reporting materials before denying him entry to the United States, according to Ou. He was on his way to cover the protest against the Dakota Access Pipeline on behalf of the Canadian Broadcast Corporation.

Welcome to the Constitution-Free Zone, Canadians! Whatever protections you might have on your side of the border matter just as little as the protections we have on our side. You have to travel ~100 miles inland before your rights are respected. For Ed Ou, this meant a lengthy detention and an attempted strip search of his electronics -- all before being told he wasn't going any further than the Canadian border. From the letter the ACLU sent to the CBP demanding a few answers [PDF]:

After Mr. Ou applied for admission to the United States at the Vancouver airport, he was redirected to secondary inspection, where he clearly identified himself as a journalist. CBP officers nonetheless detained him for more than six hours and subjected him to four separate rounds of intrusive interrogation. The officers questioned him at length about his work as a journalist and his prior professional travel in the Middle East. They also questioned him extensively about dissidents and “extremists” whom he had encountered or interviewed as a journalist. Mr. Ou answered the agents’ questions fully and forthrightly and explained many times that he was a journalist whose credentials and background could be verified easily. The officers declined to inspect his press credentials.

CBP officers also conducted an unduly intrusive search of Mr. Ou’s belongings. In the course of this search, they made photocopies of his personal papers, including of pages from his handwritten personal diary. They also confiscated, examined, and searched—or at least attempted to search—his mobile phones. The CBP officers asked Mr. Ou to unlock the three mobile phones he carries to enable him to communicate in different locations worldwide. When Mr. Ou declined with an apology, citing his ethical obligation as a journalist to protect his newsgathering materials, including his confidential sources, the officers removed the phones from Mr. Ou’s presence. When the officers returned the phones to him several hours later, it was evident that their SIM cards had been temporarily removed because tamper tape covering the cards had been destroyed or altered.

The CBP's statement in response to journalists' questions is nothing more than the expected assertion that these actions were all within its rights. As it points out, anyone arriving in the US is subject to additional searches, which can encompass the contents of their electronic devices. The CBP generally has to have an articulable reason (but not anything rising to the level of "suspicion") to do this, but a large majority of these intrusive searches go unchallenged and chanting "national security" -- as the CBP does here -- tends to make most complaints evaporate.

“Keeping America safe and enforcing our nation's laws in an increasingly digital world depends on our ability to lawfully examine all materials entering the U.S.,” the statement said.

The CBP, however, seems less sure of its reasons for detaining the photojournalist. One agent said Ou was a "person of interest" wanted by an unnamed law enforcement agency, while another said his "person of interest" status had nothing to do with his detainment. That same officer also told Ou that his refusal to unlock his phones wasn't going to help convince the CBP that he should be let into the country.

It did, however, scare up some paperwork citing a nonexistent legal authority for its refusal to admit him into the US.

The officers did provide Mr. Ou with a Form I-275 Withdrawal of Application for Admission stating that he had been found inadmissible pursuant to Section 212(a)(7)(A)(I)(I) of the Immigration and Nationality Act (“INA”). However, that is not a valid citation to the INA; indeed, the cited subsection does not exist. Section 212(a)(7)(A), moreover, pertains to those who seek admission as “immigrants”—persons intending to reside permanently in the United States. Mr. Ou plainly was not seeking admission as an “immigrant,” and neither the Form I-275 nor the questions the CBP officers asked Mr. Ou suggested any basis for concluding otherwise.

The ACLU's letter goes on to point out that the CBP now has copies of data it perhaps acquired illegally and should make an immediate effort to destroy/purge anything it collected during its chilling little fishing expedition. It also asks that the CBP cough up the real reason it decided to detain Ou and search his devices, considering those performing the search couldn't be bothered to come up with a coherent legal theory or an applicable statute to justify the intrusion.

This Constitutionless free-for-all at the borders is already a concern for US citizens, especially as the term "border" includes anything 100 miles inland. It's even more of a concern for journalists -- whether US citizens or not -- who can be prevented from covering controversial events for apparently wholly imaginary reasons.

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]]>border-town-of-Chilling-Effects,-USAhttps://www.techdirt.com/comment_rss.php?sid=20161130/14580836162Wed, 19 Oct 2016 15:00:04 PDTFBI, CBP Join Forces To Turn Airports Into Informant Recruiting CentersTim Cushinghttps://www.techdirt.com/articles/20161008/11140235746/fbi-cbp-join-forces-to-turn-airports-into-informant-recruiting-centers.shtml
https://www.techdirt.com/articles/20161008/11140235746/fbi-cbp-join-forces-to-turn-airports-into-informant-recruiting-centers.shtml
The FBI and CBP have been using the nation's borders as recruiting stations for informants. This phrasing makes it sound a lot more voluntary than it actually is. The Intercept has obtained documents showing how these two agencies work together to pressure foreign visitors into basically becoming spies for the United States.

The FBI gives CBP a list of countries of origin to watch out for among passengers, sometimes specifying other characteristics, such as travel history or age. It also briefs CPB officers on its intelligence requirements. The CBP sifts through its data to provide the bureau with a list of incoming travelers of potential interest. The FBI can then ask CBP to flag people for extra screening, questioning, and follow-up visits. According to the documents, the FBI uses the border questioning as a pretext to approach people it wants to turn informant and inserts itself into the immigration process by instructing agents on how to offer an “immigration relief dangle.”

These documents confirm what was alleged in a lawsuit filed by Rahinah Ibrahim two years ago. Her filing pointed out that the FBI has used threats in the past to secure cooperation, like revoking traveling privileges or trying to prosecute immigrants for minor crimes. Ibrahim's lawsuit had another allegation: the secret "no fly" list is also being used as a coercive tool, with agents threatening to add travelers' names to the list if they refused to go to work as informants.

The documents obtained here note that the joint recruiting efforts have expanded far past the nation's border. Some form exists in every airport in the nation. Travel to and from certain countries is flagged for extra scrutiny. The CBP collects extensive data on everything crossing US borders -- people or products -- and turns this over to the FBI with any potential targets pre-flagged. It also provides the FBI with a list of passengers expected to arrive from "countries of interest" at the nation's airports within the next 72 hours.

The CBP is supposedly in the border-securing business and the FBI in the law enforcement business, but these directives turn them both into intelligence agencies. This has made both agencies far more interested in recruitment and data harvesting than their original directives. The documents show that the CBP tends to grab the most data, starting with basic traveler information. There is no predetermined endpoint to the CBP's investigative work. Secondary screenings at borders could run from a few minutes to several hours, depending on how much the CBP wants to harvest.

The CBP materials indicate that as part of secondary inspections, CBP can search “pocket litter,” documents, and cellphones. The April 2012 presentation promises a “full cell dump, including #s, text messages, pictures, etc.” at certain airports.

Everything is passed on to the Joint Terrorism Task Force, which then starts the uglier work of pushing certain travelers into becoming informants, using both carrots, sticks and, in some cases, visits to their homes. Immigration revocation threats are common. So is the promise of benefits. But in both cases, the FBI -- working with CBP info -- is using motivations it can't actually offer or revoke.

When potential informants are not U.S. citizens, they may be particularly vulnerable to pressure from the FBI. Indeed, the bureau is counting on people thinking that FBI involvement in immigration decisions is normal, the documents indicate. In reality, FBI agents are expressly forbidden from promising immigration benefits to potential informants or threatening deportation.

“If subject is deemed ‘recruitable,’” the slides state, then a “series of overt interviews set into motion.” If the person is “not recruitable,” then “NO HARM. Subject believes that the interview is part of the immigration process.”

This is why these recruitment efforts work. The FBI is counting on the ignorance of visiting travelers to help it turn visitors into informants. A suspicionless detention in which several invasive questions are asked is considered to be "no harm," and the FBI will just move on to the next suggestion from CBP. And even if they think this might have been out of the ordinary, what are they going to do? Complain to another person in uniform and hope that the implied threats of deportation are bogus?

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]]>which-do-you-prefer?-a.)-spying-for-us-or-b.)-being-arrested?https://www.techdirt.com/comment_rss.php?sid=20161008/11140235746Fri, 30 Sep 2016 12:55:31 PDTBorder Patrol Agent Caught Watching Porn On The Job Blames The Internet Filter For Not Stopping HimTimothy Geignerhttps://www.techdirt.com/articles/20160928/06330635648/border-patrol-agent-caught-watching-porn-job-blames-internet-filter-not-stopping-him.shtml
https://www.techdirt.com/articles/20160928/06330635648/border-patrol-agent-caught-watching-porn-job-blames-internet-filter-not-stopping-him.shtml
We talk about porn filters occasionally here at Techdirt. Usually those discussions revolve around how useless and easily circumvented those filters are, even as the more clueless in government insist that we need more of this non-filtering filtering. This is not one of those stories. Instead, it is the story of one of the most tone-deaf individuals with a penchant for excuse-making I've ever come across.

We start with Gizmodo, a website that used to be owned by Gawker Media until a rich guy decided to show America exactly what a rich guy with a lot of money could do and had Gawker shut down, presumably then diving into a pile of gold coins and rubbing hundred dollar bills on his nipples. Gizmodo recently filed an FOIA request to get at documents involving the misuse of computer equipment with the Department of Homeland Security. The site was hoping to see if there were any cases of overreach and abuse of technology by the department. Instead, it uncovered four cases of people watching porn, including one really special case involving a border patrol agent that simply would not stop looking at porn while on the job.

According to the report obtained by Gizmodo, this particular case, where names have been redacted to protect the privacy of the agent, involves thousands of attempts to access porn on government computers in 2015.

The government says the unnamed agent tried to access porn 644 times in just a two-day span in July of 2015. The DHS internet software filters denied him access 467 times during those two days. Some of the porn was accessed simply because it was hosted on sites that weren’t recognized as exclusively for porn, like Flickr and Tumblr.

644 instances of watching porn while at work is the kind of dedication one likes to see out of an employee actually doing his or her job. That kind of relentless drive to jacking it while on the clock, however, isn't generally smiled upon. An investigation was conducted, which included an interview with the man caught loving himself. The agent had an excuse, however, and it's glorious.

He said that he knew he shouldn’t have been accessing porn at work, but that part of the blame was really with the Customs and Border Protection (CBP) office for not having “adequate web filters.”

Just drink that in for a moment. A border agent, part of an organization that is essentially a filter for those traveling across our borders, has said that part of the blame for his constant porn-viewing rests with the fact that the internet filter used didn't do a good enough job blocking his attempts to look at pornographic material. One immediately wonders if this excuse might be ported to the analog world of illegal immigration. Should an illegal immigrant caught by INS be able to simply shrug and say the blame for his or her illegal entry is really on the CBP for not stopping them? One might even imagine a caught illegal immigrant suggesting that CBP agents clearly didn't mind their entry if they spent so much time watching porn rather than, you know, catching those attempting to illegally cross the border. After all, if the filter isn't catching them, let's just blame that, right?

Are porn filters easily circumvented? Yes. Is that to blame for a CBP agent trying to find porn at work at a rate of near Olympic proportions? Mmm, no.

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]]>nice-excuse-you-have-therehttps://www.techdirt.com/comment_rss.php?sid=20160928/06330635648Fri, 22 Jul 2016 09:41:43 PDTWall Street Journal Reporter Hassled At LA Airport; Successfully Prevents DHS From Searching Her PhonesTim Cushinghttps://www.techdirt.com/articles/20160721/13574935036/wall-street-journal-reporter-hassled-la-airport-successfully-prevents-dhs-searching-her-phones.shtml
https://www.techdirt.com/articles/20160721/13574935036/wall-street-journal-reporter-hassled-la-airport-successfully-prevents-dhs-searching-her-phones.shtml
Welcome to Bordertown, USA. Population: 200 million. Expect occasional temporary population increases from travelers arriving from other countries. Your rights as a US citizen are indeterminate within 100 miles of US borders. They may be respected. They may be ignored. But courts have decided that the "right" to do national security stuff -- as useless as most its efforts are -- trumps the rights of US citizens.

Wall Street Journal reporter Maria Abi-Habib - a US-born citizen traveling into the States with her valid passport -- discovered this at the Los Angeles International Airport. Her Facebook post describes her interaction with DHS agents who suddenly decided they needed to detain her and seize her electronics.

The DHS agent went on to say she was there to help me navigate immigration because I am a journalist with The Wall Street Journal and have traveled to many dangerous places that are on the US' radar for terrorism.

It's generally a good idea to be wary when government employees suddenly offers to "help."

But after pushing me to the front of a very long line at immigration, she then escorted me to the luggage belt, where I collected my suitcase, and then she took me to a special section of LAX airport. Another customs agent joined her at that point and they grilled me for an hour - asking me about the years I lived in the US, when I moved to Beirut and why, who lives at my in-laws' house in LA and numbers for the groom and bride whose wedding I was attending.

Abi-Habib was very cooperative. She answered all of the agent's questions and remained calm despite this interaction being far from ordinary. It didn't matter. The DHS decided to flex its "our border, our rules" muscle.

[T]hen she asked me for my two cellphones. I asked her what she wanted from them.

"We want to collect information" she said, refusing to specify what kind.

"Collect information." That's intrusion and surveillance that serves no discernible purpose. The DHS was obviously hoping Abi-Habib would remain as cooperative as she had during the previous questioning. But Abi-Habib disappointed the DHS agent by suggesting she should talk to the phones' owner about her search plans, rather than just hope a lengthy, suspicionless detention would prompt Abi-Habib to relinquish consent.

"You'll have to call The Wall Street Journal's lawyers, as those phones are the property of WSJ," I told her, calmly.

She accused me of hindering the investigation - a dangerous accusation as at that point, they can use force. I put my hands up and said I'd done nothing but be cooperative, but when it comes to my phones, she would have to call WSJ's lawyers.

She said she had to speak to her supervisor about my lack of cooperation and would return.

Obstruction is an actual crime. This wasn't an empty threat. I mean, it was an empty threat in the way that government officials hand out threats they have no intention of following through with as a means of coercion, but it was not empty as in "without enforceable consequences." It was meant to make Abi-Habib more receptive to granting the DHS permission to search the phones. But behind the threat is an actual criminal statute that could have turned this from a detention to an arrest. And all because the DHS didn't want to obtain consent for its search from the phones' actual owner.

Abi-Habib called the DHS agent's bluff. The DHS relented.

The female officer returned 30 minutes later and said I was free to go.

Abi-Habib's post closes by noting she doesn't fit any terrorism profile and offers security tips for those traveling in and out of the US -- like leaving everything behind that could be searched/seized, or travel with a recently-wiped phone.

The DHS's actions here are disturbing. It suggests agents dig through devices on a regular basis, even when there's a complete lack of suspicion. Laws and court rulings confirm there is a lowered expectation of privacy at US borders, but the agency's refusal to follow through with a search of the devices makes it clear agents are looking to hassle people they think won't fight back -- either during the detention, or after the fact with lawsuits and/or public discussions of their treatment. It's incidents like these that show many public security efforts by government agencies are almost entirely ornamental. It's the illusion of security, rather than an actual protective effort. Border agents dig around in people's stuff just because they can, not because they need to.

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]]>the-government-will-abuse-your-rights-as-far-as-you'll-let-ithttps://www.techdirt.com/comment_rss.php?sid=20160721/13574935036Mon, 27 Jun 2016 03:23:00 PDTDHS Wants Travelers Entering The US To Include Their Social Media Handles... Just BecauseMike Masnickhttps://www.techdirt.com/articles/20160624/23583334818/dhs-wants-travelers-entering-us-to-include-their-social-media-handles-just-because.shtml
https://www.techdirt.com/articles/20160624/23583334818/dhs-wants-travelers-entering-us-to-include-their-social-media-handles-just-because.shtmlpublished in the Federal Register concerning forms tourists need to fill out upon entering the US. Specifically, DHS proposed adding the following to Form I-94W, which is the Nonimmigrant Visa Waiver Arrival/Departure Record:

It will be an optional data field to request social media identifiers to be used for vetting purposes, as well as applicant contact information. Collecting social media data will enhance the existing investigative process and provide DHS greater clarity and visibility to possible nefarious activity and connections by providing an additional tool set which analysts and investigators may use to better analyze and investigate the case.

In other words, if you're following ISIS accounts on Twitter, DHS might not let you into the US. And sure, it's voluntary, but it looks like some in Congress are already saying that this sort of thing ought to be mandatory. Of course, for the vast majority of people, their social media profiles are going to be pretty boring for your average Customs and Border Patrol agent, but do we really think it's a good use of their time to be trolling through their Facebook and Twitter feeds or Instagram and Pinterest images?

Overall, this seems like a typical kneejerk response to various concerns about letting people with ill-intent into the country. Eventually, someone travelling here on a tourist visa will do something horrendous, and people will look at who was friends with that person on Twitter or Facebook and freak out. But the idea that the government should be asking travelers for their social media info feels fairly intrusive. What people say on social media or who they're connected with seems likely to be a pretty poor indicator of whether or not they're coming to the US to blow stuff up.

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]]>maybe-they-want-to-be-friendshttps://www.techdirt.com/comment_rss.php?sid=20160624/23583334818Tue, 21 Jun 2016 14:03:14 PDTCustoms Agents, Local Doctor Subject 18-Year-Old To Vaginal, Rectal Probing In Search Of Nonexistent DrugsTim Cushinghttps://www.techdirt.com/articles/20160618/12275834743/customs-agents-local-doctor-subject-18-year-old-to-vaginal-rectal-probing-search-nonexistent-drugs.shtml
https://www.techdirt.com/articles/20160618/12275834743/customs-agents-local-doctor-subject-18-year-old-to-vaginal-rectal-probing-search-nonexistent-drugs.shtml
The Constitution-free buffer zone near our nation's borders ensures those who wander too far away from the center of our country will be robbed of their rights, thanks to ongoing wars vs. drugs and terrorism. They may also be robbed of their dignity.

There's apparently very little law enforcement personnel won't do when in pursuit of drugs. The gloves come off, only to be replaced with other gloves, which are then forcefully inserted into every orifice on a "suspect's" body. We saw this happen to New Mexico native David Eckert back in 2013. The list of invasions and indignities perpetrated on him by the Deming police and a far-too-compliant "medical professional" is long, ugly and comprehensive.

1. Eckert's abdominal area was x-rayed; no narcotics were found. 2. Doctors then performed an exam of Eckert's anus with their fingers; no narcotics were found. 3. Doctors performed a second exam of Eckert's anus with their fingers; no narcotics were found. 4. Doctors penetrated Eckert's anus to insert an enema. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 5. Doctors penetrated Eckert's anus to insert an enema a second time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 6. Doctors penetrated Eckert's anus to insert an enema a third time. Eckert was forced to defecate in front of doctors and police officers. Eckert watched as doctors searched his stool. No narcotics were found. 7. Doctors then x-rayed Eckert again; no narcotics were found. 8. Doctors prepared Eckert for surgery, sedated him, and then performed a colonoscopy where a scope with a camera was inserted into Eckert's anus, rectum, colon, and large intestines. No narcotics were found.

Perhaps that sort of payoff is in 18-year-old Ashley Cervantes' future. Cervantes did nothing more than cross the border to eat breakfast in Nogales, Mexico. Upon her return, things went from bad to worse to nightmarish. [via Cyrus Farivar, Ars Technica]

The litany of abuses inflicted on her during a 7-hour search for nonexistent drugs mirrors that of Eckert's. From the lawsuit [PDF]:

The CBP Agent became more aggressive in his questions and accusations. That CBP Agent directed Ashley to follow him to a “detention” room, ostensibly for additional questioning. Over the course of the next few hours, Ashley:

a. was handcuffed to a chair;

b. had a number of CBP K9’s sniff her person (a violation of CBP policy, which prohibits the use of K9’s on a person); and,

c. was taken into a separate room, patted down, and asked to squat so female investigators could visually inspect her.

At no point was Cervantes advised of her Miranda rights, because forget it, Jake, it's Bordertown. The CBP's inability to locate the drugs the agent fervently believed Cervantes was smuggling into the country didn't result in the conclusion of the search. Instead, efforts escalated under the theory that Cervantes was just particularly skilled in the art of concealing drugs.

First, the CBP agent deployed his own questionable medical skills to fill out a "Treatment Authorization Request." In this Immigration Health Services' form, the agent "diagnosed" Cervantes as a "potential internal carrier of foreign substances" and ordered up an X-ray. Cervantes was placed in a CBP van and taken to Holy Cross Hospital, where an all-too-willing accomplice was found in the form of Dr. Patrick F. Martinez. Once there, more questionable paperwork was completed by those involved.

The Holy Cross records from Ashley’s time at the facility include a number of factual inaccuracies, including inaccurately setting out that Ashley was accompanied by her mother and arrived in a private vehicle. In reality, Ashley was transported in a CBP vehicle. Her handcuffs were not removed until she changed into a hospital gown for the alleged purpose of undergoing an X-Ray.

Ashley had never before been to a gynecologist and, for the remainder of her life, will always remember that her first pelvic and rectal exams were under the most inhumane circumstances imaginable to a U.S. citizen at a hospital on U.S. soil.

[...]

The searches conducted by the CBP Agents, Holy Cross and Dr. Martinez injured Ashley physically, mentally and emotionally. Her labia, vaginal opening, and anus were left raw and sore and she felt violated, demeaned and powerless as a result of the searches.

Seven hours. No drugs. Multiple penetrations. No warrants. No consent. And all of this will likely be OK -- or at least not enough to leap the "qualified immunity" hurdle.

The courts have frequently held that the Fourth Amendment is nothing to get too concerned about near our nation's borders, what with drugs and terrorism on the loose. If the courts find it acceptable for the CBP to seize laptops and other devices and search them without a warrant, it stands to reason they'll probably find seizing and searching the lower half of a human being without probable cause to be just one of those things that happen in service of the public's "best interest."

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]]>CBP-demands-development-of-additional-orifices-to-violatehttps://www.techdirt.com/comment_rss.php?sid=20160618/12275834743Thu, 19 May 2016 09:45:06 PDTHomeland Security Has Not Sent Us A SubpoenaMike Masnickhttps://www.techdirt.com/articles/20160518/15535234479/homeland-security-has-not-sent-us-subpoena.shtml
https://www.techdirt.com/articles/20160518/15535234479/homeland-security-has-not-sent-us-subpoena.shtmlsending us a subpoena, asking for any identifying information we had on a commenter. That commenter had posted a (somewhat ridiculous) comment, in response to another story, about a guy who had nearly a quarter of a million dollars taken by him by Customs and Border Patrol (CBP) under civil asset forfeiture rules. The commenter, somewhat weirdly, suggested that the guy who had this money stolen might "know people" who could murder the agents who took the money. It was clearly not a threat. It was random idle speculation.

But, for whatever reason, the sister agency of CBP, called Homeland Security Investigations (HSI -- which was formerly Immigration and Customs Enforcement, or ICE), decided that it wanted to subpoena the information on the commenter. Through our lawyer, we noted that we had serious First Amendment concerns about the chilling effects this might have if even weird comments like that lead to federal law enforcement knocking on people's doors. We explained that we were happy to look over the details, but in the absence of more information suggesting a real and legitimate threat, we were inclined to resist complying with the subpoena to protect our users. We also noted that we were publishing the info on Techdirt at the time, given a similar situation with Reason's website came with an almost certainly unconstitutional gag order, and we wanted to explain what was happening prior to any similar order.

Some people have asked for an update on the situation and it's this: nothing has happened. We haven't received any subpoena at all. In fact, we've received no further communications at all from Homeland Security. It is possible that something is still coming, but we hope that the agents at HSI and anyone else involved with this have realized that this is not a worthwhile activity. We'll keep you updated, should anything change.

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]]>just-an-updatehttps://www.techdirt.com/comment_rss.php?sid=20160518/15535234479Wed, 4 May 2016 14:01:57 PDTLawsuit: CBP Took $240,000 From Man And Refused To Respond To His Forfeiture Challenge Until It Had Already Processed ItTim Cushinghttps://www.techdirt.com/articles/20160410/13325434145/lawsuit-cbp-took-240000-man-refused-to-respond-to-his-forfeiture-challenge-until-it-had-already-processed-it.shtml
https://www.techdirt.com/articles/20160410/13325434145/lawsuit-cbp-took-240000-man-refused-to-respond-to-his-forfeiture-challenge-until-it-had-already-processed-it.shtml
Looks like someone might be getting their money back after CBP agents -- operating a great distance from the US borders -- seized $240,000 from a man traveling through Indiana. While driving along I-70 outside of Indianapolis last November, Najeh Muhana was pulled over for not signalling a lane change. That's when things got weird and a bit unconstitutional.

According to his filing for return of his money, Muhana's vehicle was searched "without consent, warrant or probable cause." The Hancock County Sheriff's Department officers even brought a drug dog to the scene, but failed to uncover any contraband. The $240,000 Muhana was carrying caught their eye, though.

Muhana (correctly) intuited the officers wanted to take his money. So he told them he had just been talking to the person the money was owed to. This story, which was untrue, seemed to upset the officers, who spent the next hour discussing something presumably related to how they could take the cash from Muhana -- because that is exactly what they eventually did.

This decision was made when CBP agent Scott Thompson -- operating roughly 250 miles from the nearest border -- arrived on the scene. Thompson took the money and gave Muhana a "receipt for property." Muhana, whose native language is Arabic, took this to mean the money would be returned when the CBP finished its investigation into whatever it was it thought was going on here.

Najeh Muhana, 39, St. Louis, was preliminarily charged with possession of untaxed cigarettes, according to a Henry County Jail List.

Muhana’s charges stem from an incident that initially began on I-70 in July when members of the Pro Active Criminal Enforcement Team pulled over his rental van for unsafe lane movement. Blankets covered the cargo area and police confiscated 2,400 cartons of Newport cigarettes, valued at more than $147,000, and 650 cans of infant formula, valued at $10,500.

The cigarettes had a Missouri tax stamp, said Major Jay Davis of the Henry County Sheriff’s Department, noting that in Indiana, it is illegal to possess such items without an Indiana tax stamp.

During this stop -- which occurred in November -- officers uncovered nothing more than cash. They may have believed the two were related, but they never bothered connecting the dots for the benefit of Muhana, much less used it as a basis for the cash seizure.

In fact, all the involved agencies did was pass the buck -- along with Muhana's bucks -- whenever he sought information on how to work towards the return of his money. The filing details multiple attempts to obtain any confirmation on the forfeiture, or who he should speak to in order to get the process underway. Further, there's no record that Muhana was ever notified of the CBP's intent to pursue forfeiture -- nothing beyond the mysterious "receipt for property" the CBP agent gave him.

Muhana began making inquiries a few weeks after the money was taken, beginning in December 2015. In January, CBP agent Scott Thompson told him the case had been turned over to the CBP's Ohio office. The following Kafka-esque chain of events is directly from the filing.

On or before January 19, 2016, Mr. Muhana's counsel contacted Eartha Graham, Paralegal Specialist, U.S. Customs and Border Protection in Middleburg, Ohio regarding the status of the Currency.

On January 19, 2016, Ms. Graham responded via email to counsel, stating, "I will need something in writing preferably on company letterhead stating you are representing Mr. Muhana asap."

[...]

On January 20, 2016, counsel followed up with a facsimile to Ms. Graham, in writing,

In response to your email to me yesterday, this will confirm that I represent Najeh Mulhana relating to the seizure of three (3) bags of currency by the US. Customs Service on or about November 6, 2015, in Indiana. The seizing officer was Special Agent Thompson. Mr. Muhana is requesting return of the money.

On January 26, 2016, counsel again contacted Ms. Graham related to the Currency, asking, "Will the agency be sending me some notification regarding its intentions relating to the seized money?" She responded, "Yes, we will be sending something out soon."

On February 1, 2016, Ms. Graham followed up again with an email to counsel stating, "I just received word from our counsel to request a written statement sign (sic) by Mr. Muhana, stating you will be representing him for currency case." The same day, Mr. Muhana's counsel sent Ms. Graham an email with a copy of the law firm's engagement letter attached.

On February 8, 2016, counsel received a letter from Tessie Douglas, FP&F Officer, US. Customs and Border Protection, Middleburg, Ohio, dated February 4, 2016. In the letter Ms. Douglas stated,

This is with reference to your inquiry on behalf of your client Mr. Najehm Muhana, about the currency that was seized on November 6, 2015.

The circumstances of this case have been reviewed. It has been determined that since your client waived his rights to the currency by signing the abandonment form, he cannot make claims on the currency. The forfeiture process was completed on February 1, 2016.

The next day, Muhana's lawyer wrote back, pointing out several things. First, he had received nothing in the way of a signed waiver by Mr. Muhana indicating his relinquishment of ownership. Furthermore, even if Muhana had signed something of that sort during the arrest, he is unable to read or write in English and may not have known what he was signing. In addition, even if such a signed waiver exists, there's nothing forbidding Muhana from attempting to correct his mistake during the time between the seizure and its finalization. Muhana's attorney demanded the CBP provide him with a copy of the supposed waiver.

A reasonable request, one would think, especially when a quarter of a million dollars was on the line. But guess what? The CBP doesn't turn over that sort of paperwork to people it's taking money from. It will only turn that paperwork over to anyone who asks for it using a completely unrelated process. And that's only if it decides it isn't covered by multiple investigation-related exemptions. Behold: your tax dollars at work, giving you the finger over its cubicle wall.

There was no response until March 7, 2016. This time, counsel received an email from Rose Parks, Paralegal Specialist, U.S. Customs and Border Protection, Cleveland, which stated as follows:

The subject-referenced case has been re-assigned to me, as Ms. Graham has left our department. Per my supervisors, we do not provide copies of abandonment forms. To obtain a copy of the form, you would need to file a FOIA request.

Muhana's lawyer fired right back, hoping to find someone willing to provide more info on the up-to-this-point nonexistent waiver.

Ms. Parks:

Thank you for your message. Please confirm that the Agency has referred this matter to the US Attorneys' Office per my prior email for determination regarding forfeiture. Again, my client is making claim to the money. I understood from my conversations with Ms. Graham that the case had been re-assigned to the US Attorney for that purpose. If I have misunderstood her, please let me know immediately.

Nothing there for Mr. Muhana either.

Ms. Parks then stated as follows in her follow-up response: "The currency has been forfeited and the case is closed. No referral is being made."

The money is gone, apparently, after having skipped some necessary intermediate steps. As the filing points out, the government must notify involved parties of the intent to pursue a forfeiture. This is to give people like Najeh Muhana a very slim window in which to raise a challenge. Muhana's lawyer says that -- contrary to the law -- he was never given written notice of the agency's intentions.

The agency claims (sort of) that it had no obligation to do so because Muhana had disclaimed his ownership of it. But the chain of communications clearly show Muhana had both claimed ownership and was interested in pursuing its recovery. The agent directly involved with the seizure was made aware of this in December 2015, less than a month after the funds were taken. The agency itself was notified in writing of Muhana's intent to challenge in January 2016 -- well before the agency's February 1st declaration that the money had been forfeited.

As Muhana's lawyer points out, this is clearly bullshit.

Here, the Agency knew that Mr. Muhana was claiming to be the owner of the Currency through the repeated inquiries of his counsel. Rather than acknowledge those inquiries and respond to them, the Agency delayed any response until after February 1, 2016, when it unilaterally declared a forfeiture of the Currency. Thus, despite actual knowledge that Mr. Muhana was the owner of the Currency, the Agency refused to provide written notice to him about the Currency being seized and the Agency's intention to declare a forfeiture.

Given what's detailed here, it strongly appears as though the CBP processed a forfeiture while skipping past all the due process niceties. If so, Muhana is likely to not only prevail, but "strongly prevail" in his claim against the agency, which means it will not only have to give him back his $240,000 but pay his legal fees as well.

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]]>because-barely-any-due-process-is-far-too-much-due-processhttps://www.techdirt.com/comment_rss.php?sid=20160410/13325434145Fri, 13 Nov 2015 14:08:02 PSTBorder Patrol Looking To Become One Of The First Federal Agencies To Utilize Body CamerasTim Cushinghttps://www.techdirt.com/articles/20151108/06592132752/border-patrol-looking-to-become-one-first-federal-agencies-to-utilize-body-cameras.shtml
https://www.techdirt.com/articles/20151108/06592132752/border-patrol-looking-to-become-one-first-federal-agencies-to-utilize-body-cameras.shtml
Most of the nation's law enforcement agencies seem to accept body-worn cameras as inevitable. The DOJ supports their use of body cameras and has set aside $20 million in funding assistance for state and local agencies.

Customs and Border Protection staff concluded after an internal review that agents and officers shouldn't be required to wear body cameras, positioning the nation's largest law enforcement agency as a counterweight to a growing number of police forces that use the devices to promote public trust and accountability.

The yearlong review cited cost and a host of other reasons to hold off, according to two people familiar with the findings who spoke on condition of anonymity because the findings have not been made public. It found operating cameras may distract agents while they're performing their jobs, may hurt employee morale, and may be unsuited to the hot, dusty conditions in which Border Patrol agents often work.

Of all the excuses for not wearing body cameras, only the last has any merit. Law enforcement officers seem to have fought through the distractions "created" by several other recording devices (and certainly don't appear concerned about the potential distracting effects of their outward-facing recording equipment) over the years. As for the morale damage… well, I'm sure we'll all shed a few tears for officers whose actions over several years have resulted in current demands for greater accountability.

The CBP is no exception. The agency has been under additional scrutiny for its use of deadly force, thanks to its involvement in 40 deaths since 2010. While some deployments of deadly force were justified, other incidents involved CBP officers greeting thrown rocks with gunfire and deliberately standing in front of moving vehicles to create the justification needed to "discharge" their weapons.

On Thursday the US Customs and Border Protection (CBP) commissioner announced that the law enforcement agency would be moving forward with a plan to equip its ranks with body cameras. The cameras, Commissioner R. Gil Kerlikowske said, would be used during "operations such as checkpoints, vessel boarding and interdictions, training academies, and outbound operations at ports of entry.” The commissioner added that CBP would also be assessing how it currently uses stationary and car-mounted cameras to see if additional cameras are needed.

The CBP could have dodged the additional accountability body cameras potentially offer. It had all the excuses lined up. But instead it chose to overcome its mostly self-imposed obstacles and expand the documentation of CBP officers' interactions with members of the public. More encouragingly, the new report points out that body cameras will have a "wide variety of benefits" for the CBP. While many law enforcement and security officers tend to view body cameras as existential threats to their employment, they've already shown they can just as clearly capture the public's "misconduct."

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]]>an-agency-in-need-of-additional-accountability-actually-accepts-ithttps://www.techdirt.com/comment_rss.php?sid=20151108/06592132752Fri, 2 Oct 2015 19:39:00 PDTHomeland Security Detains Stockton Mayor, Forces Him To Hand Over His PasswordsMike Masnickhttps://www.techdirt.com/articles/20151002/15583732429/homeland-security-detains-stockton-mayor-forces-him-to-hand-over-his-passwords.shtml
https://www.techdirt.com/articles/20151002/15583732429/homeland-security-detains-stockton-mayor-forces-him-to-hand-over-his-passwords.shtmlhad his two laptops and his mobile phone confiscated. They refused to show him any sort of warrant (of course) and then refused to let him leave until he agreed to hand over his password:

“A few minutes later, DHS agents confiscated all my electronic devices including my personal cell phone. Unfortunately, they were not willing or able to produce a search warrant or any court documents suggesting they had a legal right to take my property. In addition, they were persistent about requiring my passwords for all devices,” Silva said.

Silva was not allowed to leave the airport until he gave his passwords to the agents, which the mayor’s personal attorney, Mark Reichel, claimed is illegal.

The mayor said the agents told him confiscating property from travelers at the airport was “in fact routine and not unusual,” and promised to return the items within a few days.

To some extent what the DHS told him is true. It's not that unusual, but it's not that common either. But forcing him to turn over the passwords is unusual, and not standard practice. Besides, courts have been growing increasingly less impressed with Homeland Security's willingness to ignore the Constitution at the border.

The feds, of course, refuse to say anything, saying they cannot confirm or deny anything. Silva first claimed that he's "happy to cooperate and comply with these inspection procedures if they are in fact routine and legal," but pretty quickly notes how ridiculous all of this is:

"I think the American people should be extremely concerned about their personal rights and privacy," he said. "As I was being searched at the airport, there was a Latino couple to my left, and an Asian couple to my right also being aggressively searched. I briefly had to remind myself that this was not North Korea or Nazi Germany. This is the land of the Free."

So they keep telling us.

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]]>home-of-the-freehttps://www.techdirt.com/comment_rss.php?sid=20151002/15583732429Mon, 28 Sep 2015 14:54:37 PDTJudge Tells CBP That It Certainly CAN Be Sued For Its FOIA Response Foot DraggingTim Cushinghttps://www.techdirt.com/articles/20150921/08482932313/judge-tells-cbp-that-it-certainly-can-be-sued-foia-response-foot-dragging.shtml
https://www.techdirt.com/articles/20150921/08482932313/judge-tells-cbp-that-it-certainly-can-be-sued-foia-response-foot-dragging.shtml
Customs and Border Patrol, like many government agencies involved with law enforcement and/or security, isn't all that thrilled that Joe Citizen can demand access to its records. When not dragging its feet on requests, the agency actively thwarts FOIA requests, albeit using more than the normal "so sue us" non-response.

The DHS's Inspector General found that over a three-year period (2011-13), the CBP "mishandled" 23,000 FOIA requests. "Mishandled" is a misnomer. The agency improperly closed 11,000 requests. The other 12,000 requests were stashed in boxes and forgotten, never making their way into the CBP's FOIA response system.

A class action lawsuit has been brought against the agency for its "pattern and practice of failing to respond to FOIA requests within the statutory timeline." The plaintiffs are five immigration attorneys and thirteen non-citizens, the latter of which have found it difficult to remain in the country legally thanks to the CBP's unwillingness to turn over documents pertaining to their immigration status. (via Courthouse New Service)

The order notes that the CBP does not challenge the assertion that it doesn't respond in a timely fashion. But, as the plaintiffs point out, this is a problem that the CBP doesn't seem to be interested in solving. As it stands now, it's unlikely the CBP will get its FOIA act together. At least not in the near future. Or possibly ever.

CBP does not seriously dispute that it has failed to respond to plaintiffs’ FOIA requests within the statutory timelines. See, e.g., Dkt. No. 29 at 2 n.1. Plaintiffs also allege that CBP’s FOIA backlog -- the number of requests that have gone unanswered past the statutory deadline -- has swelled over the last few years and will require almost 10 years to zero out at the current pace.

While the CBP doesn't dispute the accusations of consistently tardy responses, it does make the dubious assertion that a pattern of late (or nonexistent) responses just isn't an actionable injury in the context of a class action suit.

No sale.

The government says that the case should be dismissed because an agency’s failure to meet the response deadline is not an actionable violation of FOIA. Dkt. No. 26 at 4. That argument is wholly at odds with the statute and cases construing it. FOIA’s intended purpose is to assure timely public access to governmental information and records. As Congress stated, “‘[i]nformation is often useful only if it is timely. Thus, excessive delay by the agency in its response is often tantamount to denial.’” Gilmore v. U.S. Dep’t of Energy. The denial of access to government records in a timely fashion is precisely the harm FOIA is intended to prevent.

If the people the law is supposed to serve are going to be granted an opportunity to seek redress for their grievances, than you'd better believe FOIA-related foot dragging is actionable -- no matter how much the CBP wishes that weren't the case.

The government grudgingly acknowledges that “[s]ome Northern District of California decisions have recognized claims for delay in responding to FOIA requests” -- which of course overlooks the decisions outside this District that reach the same conclusion -- but urges the Court to discount them because they pre-date the District of Columbia Circuit opinion in CREW. In the government’s view, CREW undercuts these cases because it holds that the failure to meet FOIA’s deadlines has no legal consequence other than “an agency’s forfeiture of the exhaustion of administrative remedies defense.”

The CBP could not be more wrong, says Judge James Donato.

This argument is tantamount to a willful misreading of CREW. The case says nothing at all about the vitality of a FOIA claim based on a violation of the response deadline. The sole “question presented” in CREW “concerns when a FOIA requester must exhaust administrative appeal remedies before filing suit.” CREW held that when an agency fails to respond to a FOIA request within the statutory timeline, it cannot invoke an administrative exhaustion argument to keep cases out of court.

The government also argues the plaintiffs have no standing because their accusations require "specific allegations of future harm." Again, Judge Donato points out the error in its thinking.

Once again, CBP’s position is bereft of support. It does not cite a single case holding that specific allegations of futurity are essential to a pattern and practice claim or standing under FOIA. To the contrary, several cases have allowed pattern and practice claims for unreasonable delay -- and recognized a plaintiff’s standing to bring them -- “even where the plaintiff’s FOIA request had already been resolved.” Gilmore, 33 F. Supp. 2d at 1186 (and cases cited therein).

In Payne itself, the case on which CBP hangs its hat, the court sustained a claim for undue delay despite the fact that the agency had released the specific documents that prompted the lawsuit. And even if allegations of future harm were required, plaintiffs have stated enough facts to infer it here. Plaintiffs include several immigration attorneys, some of whom have practiced for decades, who “regularly file[]” FOIA requests on behalf of their clients. It is more than plausible to infer that they will continue to make regular FOIA requests for the CBP documents that are critical for their work, and continue to experience improper delays.

The plaintiffs haven't actually been handed a win here, but rather survived a motion to dismiss from the government. But the court's reading of the government's arguments here show it's not too impressed with the CBP's excuses for its miserable track record on FOIA responses.

The most disheartening aspect of this lawsuit, however, is contained in the plaintiffs' complaint. The CBP's delaying tactics have generated a 10-year backlog of unanswered requests. That backlog will only continue to grow as more and more people avail themselves of FOIA tools provided by the government. The government has opened up the process and made it more accessible, but has yet to fix the bottlenecks in the system -- recalcitrant agencies and/or those that are simply understaffed. The problem will continue, as will the lawsuits, for the foreseeable future, no matter the outcome of this particular case.

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]]>there's-a-reason-the-CBP-is-rarely-the-'moving'-party-in-FOIA-lawsuihttps://www.techdirt.com/comment_rss.php?sid=20150921/08482932313Fri, 28 Aug 2015 06:17:00 PDTBorder Patrol Agent Forwarded All Emails To Someone Else's Gmail; Only Discovered When 'Civilian' RespondedMike Masnickhttps://www.techdirt.com/articles/20150827/17215032089/border-patrol-agent-forwarded-all-emails-to-someone-elses-gmail-only-discovered-when-civilian-responded.shtml
https://www.techdirt.com/articles/20150827/17215032089/border-patrol-agent-forwarded-all-emails-to-someone-elses-gmail-only-discovered-when-civilian-responded.shtmlalerts us to a rather stunning security mistake by a Customs and Border Patrol (CBP) agent, as outlined in some DHS released "incident reports" concerning "cloud data breaches." The very first one involves the CBP agent forwarding all of his email to a personal account, but messing up the configuration, so that it actually forwarded to someone else's Gmail account (someone with a similar name) -- and this mistake was only noticed when this "civilian" responded to an email he had received via this forwarding, and the response was sent to a wider mailing list of Homeland Security employees:

If you can't see that, here's what it says:

CBP reports that one (1) CBP user had an auto-forwarding rule setup to have emails sent externally to a civilian's personal Gmail account. There is a possibility that sensitive information to include Personally Identifiable Information (Pll) has been accidently sent out due to this rule. The incident was discovered when a civilian responded to a CBP user's email to a distribution list of other CBP/DHS users. The CBP user noticed the civilian's Gmail address and reported it to the FTO who then reported the incident to the CBP CSIRC. Upon investigation and confirmation from EaaS, one (1) CBP Border Patrol Agent who was on the email distribution list had an auto-forwarding rule setup within their Exchange account to a non-CBP/DHS user's personal Gmail account. The name of the Border Patrol Agent and the civilian are very similar, but it was determined that the Border Patrol Agent misconfigured the rule by using the civilian's personal Gmail address instead of his own. Technical remediation will include working with the EaaS team to implement a rule to disable the auto-forwarding rule and only allow it when requests are made to the Exchange team. The incident has been reported to the CBP Privacy Office and Joint Intake Center for action (assisting the user to have all government emails removed and confirmed).

It seems rather stunning that CBP/DHS didn't already have such a rule in place. Then again, this is Customs and Border Patrol, who has something of a history of not really giving a fuck because they can get away with doing whatever they want and no one ever does anything about it.

Later in the same report, it is revealed that this auto-forwarding from inside DHS to private accounts happened somewhat frequently. An investigation just a month after the incident above showed 771 such rules set in DHS staffers Exchange systems:

If you can't read that, it says:

DHS SOC reports that a total of 771 rules are configured in Exchange to auto-forward emails external to DHS. DHS SOC requested and received a list of 771 automated email forwarding rules created by DHS Email as a Service (EaaS) users. Auto-forwarding or redirecting of DHS email to address outside of the .gov or .mil domain is prohibited and shall not be used per DHS 4300A policy, section 5.4.6.i and poses a high risk of accidental disclosure of Pll, SBU, FOUO, LES, or classified data. The incident has been reported to the Joint Intake Center (JIC). Affected Components (CBP, FEMA, DHS HQ, and DC2) are asked to identify and remediate the rules.

Not sure about to you, but this doesn't make me feel much safer about DHS at all. And, remember, DHS is one of the government bodies currently looking to manage the government's cybersecurity efforts -- and they're considered the better option given just how little people trust the NSA or the FBI (the two other main contenders).

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]]>oopshttps://www.techdirt.com/comment_rss.php?sid=20150827/17215032089Tue, 14 Jul 2015 14:08:34 PDTLaura Poitras Sues US Government To Find Out Why She Was Detained Every Time She FlewMike Masnickhttps://www.techdirt.com/articles/20150714/05544231629/laura-poitras-sues-us-government-to-find-out-why-she-was-detained-every-time-she-flew.shtml
https://www.techdirt.com/articles/20150714/05544231629/laura-poitras-sues-us-government-to-find-out-why-she-was-detained-every-time-she-flew.shtmlCITIZENFOUR, and with it, one of the reporters who helped break Snowden's story in the first place. Pre-Snowden, she was a not-as-widely-known-but-still-celebrated documentary filmmaker, who also got some attention after her future colleague Glenn Greenwald wrote an article about how she was detained at the border every time she flew into the country (which was frequently, as she had made a documentary, My Country, My Country, concerning the Iraq War, along with The Oath, which reported on two Yemenis who had worked with Osama bin Laden). As Greenwald wrote back in 2012:

But Poitras’ work has been hampered, and continues to be hampered, by the constant harassment, invasive searches, and intimidation tactics to which she is routinely subjected whenever she re-enters her own country. Since the 2006 release of “My Country, My Country,” Poitras has left and re-entered the U.S. roughly 40 times. Virtually every time during that six-year-period that she has returned to the U.S., her plane has been met by DHS agents who stand at the airplane door or tarmac and inspect the passports of every de-planing passenger until they find her (on the handful of occasions where they did not meet her at the plane, agents were called when she arrived at immigration). Each time, they detain her, and then interrogate her at length about where she went and with whom she met or spoke. They have exhibited a particular interest in finding out for whom she works.

She has had her laptop, camera and cellphone seized, and not returned for weeks, with the contents presumably copied. On several occasions, her reporter’s notebooks were seized and their contents copied, even as she objected that doing so would invade her journalist-source relationship. Her credit cards and receipts have been copied on numerous occasions. In many instances, DHS agents also detain and interrogate her in the foreign airport before her return, on one trip telling her that she would be barred from boarding her flight back home, only to let her board at the last minute. When she arrived at JFK Airport on Thanksgiving weekend of 2010, she was told by one DHS agent — after she asserted her privileges as a journalist to refuse to answer questions about the individuals with whom she met on her trip — that he “finds it very suspicious that you’re not willing to help your country by answering our questions.” They sometimes keep her detained for three to four hours (all while telling her that she will be released more quickly if she answers all their questions and consents to full searches).

It wasn't only at the border that she was subject to such searches. Often, even when flying domestically within the US, she was called out for further scrutiny and searches.

After Greenwald's article, a bunch of documentary filmmakers signed a petition protesting the treatment of Poitras, and between the press coverage and the petition, the harassment of Poitras suddenly stopped.

After this, she filed some FOIA requests to find out why she had been supposedly given a high threat rating in the DHS database, causing such detentions. Not surprisingly, the government refused to reveal any such information. And that brings us to the latest, where Poitras, with help from the EFF, has now sued the US government (specifically the Departments of Homeland Security and Justice) to get them to reveal why she was considered a threat.

As the filing itself explains, Poitras filed FOIA requests with basically every part of the government that might have information on her detentions, and basically got nothing in response from any of them, either by mostly ignoring the requests or rejecting them.

As the lawsuit also notes, Poitras took detailed records of her detentions (when she could -- in at least one instance she was denied the use of a pen to take notes after being told she might use it as a weapon). And the lawsuit includes some detailed descriptions. Here's just a snippet from a much longer list.

On or around August 22, 2006, while traveling from Sarajevo, the capital of
Bosnia and Herzegovina, to John F. Kennedy International Airport (“JFK”) in New York City
after attending the Sarajevo Film Festival, Plaintiff was paged to security while transiting
through the Vienna International Airport in Vienna, Austria. Plaintiff was thereafter taken into a
van and driven to a security inspection area. All of Plaintiff’s bags were searched and xrayed.
The head of airport security at the Vienna International Airport told Plaintiff that her
“Threat Score” was 400 out of 400 points. Plaintiff was eventually allowed to board a plane to
the United States. Upon her arrival at JFK, CBP agents again met her at the gate. Plaintiff was
thereafter escorted to a holding room, where she was detained and questioned for roughly two (2)
hours, and where her bags were searched for a second time, before being allowed to enter the
United States.

On or around November 26, 2006, while traveling from
Paris, France to Newark
on her way home from a vacation, Plaintiff was met by boarder agents upon her arrival at
Newark. She was detained and questioned for 30 minutes.

On or around December 17, 2006, while traveling from Dubai, United Arab
Emirates to JFK after attending the Dubai Film Festival, Plaintiff was met by border agents upon
her arrival at JFK. She was again detained and questioned before being allowed entry into the
United States. The CBP agents asked Plaintiff when she had last been to Atlanta, Georgia and
told her that she had a criminal record, despite that she had never been arrested.

Unfortunately, the courts have been pretty deferential to the government concerning things like the "no fly" list and the terrorist database, which means this lawsuit might be a long shot. However, one hopes that a judge will see both the clear ridiculousness of the treatment and the rather obvious fact that it was designed to intimidate Poitras and chill her First Amendment rights, and consider forcing the government into releasing these documents.

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]]>time-for-some-answershttps://www.techdirt.com/comment_rss.php?sid=20150714/05544231629Mon, 11 May 2015 11:36:00 PDTCourt To Homeland Security: Wait, No, You Can't Just Take Anyone's Laptop At The Border To Bring Somewhere To SearchTim Cushinghttps://www.techdirt.com/articles/20150511/08053430957/court-rejects-questionable-border-search-laptop-saying-computers-are-not-just-containers.shtml
https://www.techdirt.com/articles/20150511/08053430957/court-rejects-questionable-border-search-laptop-saying-computers-are-not-just-containers.shtml
The government -- via the DHS and CBP -- has long insisted it should be able to search whatever, whenever, within X number of miles of the border for national security reasons. The DOJ has routinely argued on its behalf, delivering non sequiturs like "Not searching your laptop doesn't protect your civil liberties" with a straight face.

The security/liberty tradeoff has routinely suffered from the government's insistence that its Fourth Amendment-skirting efforts are in the public's best interest, even if the public isn't nearly as interested in seeing the drawers of their personal computing equipment emptied onto the floor every time they stray too close to the "Constitution-Free Zone."

The courts have generally upheld the government's arguments, with a few exceptions. The Eastern District of New York basically said that if you don't want your stuff looked through for no reason, don't put so much stuff in your stuff -- especially sensitive stuff. The presiding judge, Edward Korman, went so far as to compare the US to countries with severe civil rights issues, like Syria and Lebanon, and declared the US the "winner," seemingly because citizens enjoy more rights once they move further inland.

The 9th Circuit Court went the other way, upholding the rights of citizens to be "secure in their papers" -- something most laptops contain en masse. A laptop is not a suitcase and cannot be examined simply because it happens to be crossing the border. Electronic devices are not analogous to physical items travelers carry, no matter how much it benefits the government to treat cell phones as "pockets" and laptops as "suitcases."

In this case, CBP seized a laptop from Jae Shik Kim, whom it suspected was involved with shipping certain items to China, which were then forwarded to Iran. DHS agents grabbed Kim's laptop before he boarded an outbound flight to Korea. It then took this laptop from where it was seized to an office 150 miles away from where it was seized and dug through it for incriminating information. It found some, but this evidence has now been suppressed.

Judge Amy Jackson attacks the government's ridiculous assertions within the first few paragraphs of the ruling:

The government points to its plenary authority to conduct warrantless searches at the border. It posits that a laptop computer is simply a “container” that was examined pursuant to this authority, and it submits that the government’s unfettered right to search cargo at the border to protect the homeland is the beginning and end of the matter.

Jackson deals with both the treatment of personal electronic devices as "cargo" and the government's reliance on a "Constitution-Free Zone" that apparently exists wherever the government says it exists.

But to apply those principles under the facts of this case would mean that the border search doctrine has no borders. The search of the laptop began well after Kim had already departed, and it was conducted approximately 150 miles away from the airport. The government engaged in an extensive examination of the entire contents of Kim’s hard drive after it had already been secured, and it accorded itself unlimited time to do so. There was little or no reason to suspect that criminal activity was afoot at the time Kim was about to cross the border, and there was little about this search – neither its location nor its scope and duration – that resembled a routine search at the border. The fundamental inquiry required under the Fourth Amendment is whether the invasion of the defendant’s right to privacy in his papers and effects was reasonable under the totality of the circumstances, and the Court finds that it was not.

Unbelievably, the government actually used the Ninth Circuit Court's decision finding suspicionless searches of electronics a violation of the Fourth Amendment in its defense of its search of Kim's laptop. Adding this to its "container" assertion leads to some cognitive dissonance, which Judge Jackson points out:

The government argues first and foremost that a laptop is nothing more than a sort of container, and that the agents had full authority to scour its contents without the need for a warrant or a showing of any particular level of suspicion simply because the search was initiated at the border. [...] But the government also suggests that a search which took place at LAX, involving a passenger traveling to and from California, should be assessed utilizing the Ninth Circuit precedent set forth in United States v. Cotterman...

In Cotterman, the Ninth Circuit announced that reasonable suspicion was required before investigators could undertake the forensic examination of a computer hard drive as part of a search that began as a cursory review at the border. In this case, the government argues both that no suspicion was necessary since this was an ordinary, reasonable border search that can be distinguished from the forensic examination that took place in Cotterman, and also that the necessary suspicion was present.

After examining and discarding a number of precedential rulings that don't quite fit the situation at hand, Judge Jackson turns to the Supreme Court's recent Riley ruling, dealing with warrantless searches of cell phones incident to arrest. Since a laptop has more in common with today's smartphones than the address books, leather valises and pocket contents of yesteryear, Jackson applies the standards set by that ruling.

Applying the Riley framework, the national security concerns that underlie the enforcement of export control regulations at the border must be balanced against the degree to which Kim’s privacy was invaded in this instance. And as was set forth above, while the immediate national security concerns were somewhat attenuated, the invasion of privacy was substantial: the agents created an identical image of Kim’s entire computer hard drive and gave themselves unlimited time to search the tens of thousands of documents, images, and emails it contained, using an extensive list of search terms, and with the assistance of two forensic software programs that organized, expedited, and facilitated the task. Based upon the testimony of both Special Agent Hamako and Special Agent Marshall, the Court concludes that wherever the Supreme Court or the Court of Appeals eventually draws the precise boundary of a routine border search, or however either Court ultimately defines a forensic – as opposed to a conventional – computer search, this search was qualitatively and quantitatively different from a routine border examination, and therefore, it was unreasonable given the paucity of grounds to suspect that criminal activity was in progress.

Not only that, but the possible exception to the Riley ruling -- the presumed waiving of Constitutional rights simply by entering/exiting the country -- isn't available to the government, thanks to its own actions.

It is true that Kim’s laptop was seized at the border – in this case, LAX – but it was not even opened, much less searched, there. It was transported approximately 150 miles to San Diego, it was retained for a limited period of time, and eventually, the laptop was returned. Meanwhile, there was so little of note found in Kim’s luggage, and he posed so little of an ongoing threat to national security, that he was permitted to board his flight.

If the government allowed Kim to leave the country, it obviously didn't have enough reasonable suspicion to search his laptop. This was a fishing expedition, partly predicated on some solid hunches, but that's not enough to justify the level of intrusion the government subjected Kim to. These actions are also jarring in their dissonance: if Kim was considered "dangerous" enough to have his rights discarded for national security reasons, then it raises questions as to why he was allowed to travel halfway around the world unimpeded. The government again wishes to have it both ways: Kim is a suspected criminal but also free to leave the country -- something most criminal suspects aren't allowed to do.

All of this contradictory reasoning adds up to a suppression of the evidence the government worked so hard to obtain:

After considering all of the facts and authorities set forth above, then, the Court finds, under the totality of the unique circumstances of this case, that the imaging and search of the entire contents of Kim’s laptop, aided by specialized forensic software, for a period of unlimited duration and an examination of unlimited scope, for the purpose of gathering evidence in a pre-existing investigation, was supported by so little suspicion of ongoing or imminent criminal activity, and was so invasive of Kim’s privacy and so disconnected from not only the considerations underlying the breadth of the government’s authority to search at the border, but also the border itself, that it was unreasonable.

This ruling clearly highlights the asinine arguments justifying the government's at-will, warrantless border searches. The DHS/CBP continues to assert electronics, containing thousands of documents and a wealth of personal information that normally wouldn't be transported across borders in a physical fashion, should be treated as nothing more than "containers." It doesn't make this connection because it's obtuse. It makes this connection because it wants as much unfettered access as it can get.

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]]>just-like-a-cell-phone-isn't-a-pair-of-pantshttps://www.techdirt.com/comment_rss.php?sid=20150511/08053430957Wed, 18 Feb 2015 21:01:52 PSTJudge Tosses 16 Kilos Of Meth Because CBP Couldn't Be Bothered To Obtain Consent For Its X-Ray SearchTim Cushinghttps://www.techdirt.com/articles/20150212/13513030008/judge-tosses-16-kilos-meth-because-cbp-couldnt-be-bothered-to-obtain-consent-its-x-ray-search.shtml
https://www.techdirt.com/articles/20150212/13513030008/judge-tosses-16-kilos-meth-because-cbp-couldnt-be-bothered-to-obtain-consent-its-x-ray-search.shtmlthe most honest way to approach it is stupidly.

Sixteen kilos of methamphetamine the Border Patrol found in an SUV was struck from the record by a federal judge because the agents didn't get the driver's consent to X-ray the vehicle.

The CBP had two suspects exactly where it wanted them: detained by agents at a checkpoint. And the longer they were detained, the more nervous they got. Despite a search of the interior turning up nothing and the drug-sniffing dogs failing to alert, the CBP officers were pretty sure they had just captured two smugglers. So, the agents routed the vehicle through their backscatter X-ray scanner, skipping a step in the process.

Agent Buchanan testified that he did not rely on probable cause for the backscatter search, but rather on consent to search given by Defendants. He testified, “we always ask for consent for the backscatter . . . unless we’ve already found something in the vehicle.” He testified that he typically has another agent get consent to search the vehicle with the backscatter. Agent Buchanan was unable to identify the agent he asked to get consent from the Defendants and was unable to confirm that such consent was requested.

So, Buchanan was unable to come up with any evidence or probable cause, but decided to perform the backscatter anyway, despite his doing so being completely contradicted by his portrayal of the CBP's standard m.o. This wasn't the only contradictory statement in the CBP's testimony.

Agent Valdez, who remained in the secondary waiting area with the Defendants, testified that he was present when Defendants gave consent to the backscatter search. However, he was unable to identify the agent who requested consent, how the request was phrased, and how the Defendants replied.

Valdez, despite being "present," couldn't actually say whether the defendants had given consent (or who to), but went ahead and told the court that the two men had consented.

The backscatter device -- an additional search that required consent or a warrant -- uncovered 14 wrapped packages of meth, 16 kilograms in all. From that Fourth Amendment-skirting search, the CBP compiled its criminal complaint. Now, all of that narrative is nearly useless, thanks to these officers' actions.

The court, on its way to dismissing as evidence the 16 kilos of meth obtained that day, points out the government's contradictory statements, as well as its inability to find anyone to corroborate the multiple claims that permission for the search had been granted.

Defendants argue that Border Patrol agents did not request their consent to search the vehicle with a backscatter. Agent Buchanan testified that he asked another Border Patrol agent to obtain that consent, but he was unable to identify the agent and was unable to confirm that the agent requested consent. Although Agent Valdez testified that he was present when Defendants gave consent for the backscatter search, he was unable to recall which agent requested consent and what was said by the agent and the Defendants. More importantly, the Government failed to identify and to offer the testimony of the agent who purportedly sought and obtained the consent.

And away goes 16 kilos of evidence, along with the bust itself, most likely. Kind of hard to prove the defendants were smuggling drugs when you can't introduce the smuggled drugs in court. Everyone at this particular CBP checkpoint apparently felt someone else would handle the consent issue. And even if the agents had been rebuffed, it's not as though the detainees were free to go. A warrant could have been acquired, most likely with minimal effort.

This isn't a huge bust nor would it have put a significant dent in a drug lord's operation. The CBP only had a couple of guys who had muled themselves out for a few hundred dollars. That, in and of itself, is just one of the problems with this nation's drug war. Thousands of tiny arrests like these happen every day and the "problem" isn't anywhere closer to being "solved."

The other thing this incident is symptomatic of is our nation's law enforcement agencies' extremely casual relationship with the Fourth Amendment. Time after time, we see the government (national and local) doing everything it can to avoid obtaining warrants -- whether it's their tendency to ask dogs for "permission" to perform warrantless searches or officers themselves using everything from imperceptible whiffs of drug odors to declaring every sign of nervousness as tantamount to a full confession. "Probable cause" is a low bar, but law enforcement agencies seem willing to sidestep it with alarming regularity. The CBP had a car full of drugs and two suspects nailed, but it showed that its "respect" for the Fourth Amendment was just a formality. Now, it has nothing more than two men suspected of smuggling the same drugs that can't be used against them in a court of law.

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]]>for-the-lack-of-a-warrant,-the-drug-bust-was-losthttps://www.techdirt.com/comment_rss.php?sid=20150212/13513030008Fri, 21 Nov 2014 13:34:47 PSTReport Says Customs And Border Protection Shoved 12,000 Unanswered FOIA Requests Into Boxes And Forgot About ThemTim Cushinghttps://www.techdirt.com/articles/20141120/10304129207/report-says-customs-border-protection-shoved-12000-unanswered-foia-requests-into-boxes-forgot-about-them.shtml
https://www.techdirt.com/articles/20141120/10304129207/report-says-customs-border-protection-shoved-12000-unanswered-foia-requests-into-boxes-forgot-about-them.shtml
The Government Accountability Office has taken a look at the DHS and its handling of FOIA requests, and it doesn't like what it sees. There are plenty of numbers in the report but the most incredible number is this: 23,000 FOIA requests mishandled by a single agency under the DHS's control. [pdf link]

Nonetheless, CBP experienced a large increase in the number of its backlogged requests from fiscal year 2011 through fiscal year 2013—from 4,356 requests to 37,848 requests. According to CBP officials, two problems, in particular, contributed to the higher numbers. First, approximately 11,000 FOIA cases that were improperly closed in 2012 had to be reopened and reprocessed. Second, after its reorganization, a new manager found a stack of boxes containing 12,000 paper requests from 2012 that had never been entered into their processing system. The officials stated that CBP subsequently cleared all of these requests.

Unfortunately, the report doesn't contain any further details on how these events occurred. The preceding paragraph notes that the CBP has taken steps (hiring/training additional staff, extending agreement with USCIS to handle FOIA processing) to tackle its backlog of requests, but there's nothing explaining how 11,000 requests were "improperly closed" or how 12,000 requests managed to bypass the FOIA system completely, only to reappear in a stack of boxes located elsewhere.

Part of the problem seems to be the DHS itself. The agency is supposed to be fixing its lousy FOIA response system, which includes every agency under its oversight. But the DHS is too big to do the job properly. When it was formed in 2003, the DHS assumed control of 22 agencies and offices as well as absorbed 209,000 federal employees. By 2014, this had grown to 28 agencies and offices.

The GAO pointed out serious flaws in the agency's FOIA processes since 2008, along with handing down several recommendations. Most of that has been ignored or implemented badly. (Pretty much par for the course for an agency another GAO report bluntly stated "had no project management skills.") For the most part, the "solution" has been to throw warm bodies at the request backlog. In a better system, this might have worked. But the DHS's underling agencies seem to all have different ideas as to what tracking and response system works best, resulting in a snarled "network" of responders that creates more problems than it solves.

Responsibility for processing FOIA requests is decentralized among DHS’s Privacy Office and component agencies...In addition, each of the selected components has its own program and procedures for processing, tracking, and reporting FOIA activities... Further, while the selected components report their FOIA processing costs to the Privacy Office, which then aggregates this data, these reported costs are incomplete, thus hindering accountability for the total costs incurred by the department and the components in managing and processing FOIA requests. Also, duplication exists in the processing of certain requests for immigrant files that are handled by two of the selected components.

This table highlights part of the problem:

Only half of the six agencies are using the same system. ICE is using FileMaker Pro in addition to using FOIAXpress, partially nullifying the interconnectedness of the system it shares with two other agencies. The Coast Guard is using nothing more than off-the-shelf Excel to handle its FOIA requests.

Because of the disparate methods and lack of interagency connectivity, the GAO notes that it is unable to provide a completely accurate picture of the DHS's FOIA processes, both in terms of backlogs and costs incurred.

Due to the non-reporting of particular cost categories and concerns about the accuracy of certain reported cost data, including data with obvious errors and inconsistent accounts of how data were collected, we concluded that, overall, the cost data provided were not sufficiently reliable, based on federal management cost accounting standards, to determine DHS’s total FOIA costs, but that our analysis allowed us to conclude that overall costs were underreported...

In examining reported data on the volumes of FOIA requests made to DHS, we found two data reliability issues of concern. First, we found that a FOIA request may be recorded and counted more than once… Similarly, a request sent to more than one component may be entered separately by each component that responds. Nonetheless, while this double counting may result in an inaccurate number of total requests received by DHS, it did not affect our findings, since we have no findings related to the overall volume of requests handled by DHS.

When it's all said and done, the DHS accounts for nearly half of the government's 95,000-request backlog. Part of it is due to its size, which encompasses some agencies (CBP, ICE) many Americans are seeking more and more information from. But the rest of it is on the DHS itself, which has been informed of its deficiencies since 2008, but has made very little forward progress.

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]]>your-tax-dollars-hardly-workinghttps://www.techdirt.com/comment_rss.php?sid=20141120/10304129207Mon, 10 Mar 2014 13:17:00 PDTBorder Patrol Given New Deadly Force Guidelines After Report Shows Officers Created Dangerous Situations To Justify Opening FireTim Cushinghttps://www.techdirt.com/articles/20140309/14362326506/border-patrol-given-new-deadly-force-guidelines-after-report-shows-officers-created-dangerous-situations-to-justify-opening-fire.shtml
https://www.techdirt.com/articles/20140309/14362326506/border-patrol-given-new-deadly-force-guidelines-after-report-shows-officers-created-dangerous-situations-to-justify-opening-fire.shtml
The US Border Patrol has handed down new guidelines for use of deadly force after its agents killed 19 people in 67 shooting incidents between 2010-2012.

The U.S. Border Patrol has restricted border agents' authority to shoot at moving vehicles or at people throwing rocks, changing a controversial policy that has contributed to at least 19 deaths since 2010…

The new rules would bring the Border Patrol's practices closer to those used routinely by the nation's major urban police departments. They are a response, in part, to widespread complaints from immigrant advocates that border agents have shot and killed people in some cases when deadly force was not necessary to protect the lives of agents or the public.

House and Senate oversight committees requested copies last fall but received only a summary that omitted the most controversial findings — that some border agents stood in front of moving vehicles as a pretext to open fire and that agents could have moved away from rock throwers instead of shooting at them…

"It is suspected that in many vehicle shooting cases, the subject driver was attempting to flee from the agents who intentionally put themselves into the exit path of the vehicle, thereby exposing themselves to additional risk and creating justification for the use of deadly force," the report reads. In some cases, "passengers were struck by agents' gunfire."

Judging from this, one would almost believe certain CBP agents were just looking for excuses to shoot someone. And the CBP agents' response has been to claim that new guidelines -- telling them not to stand in front of escaping vehicles and to move away from rock-throwing individuals -- will somehow make the job more dangerous.

The response, marked "Law Enforcement Sensitive," states that a ban on shooting at rock throwers "could create a more dangerous environment" because many agents operate "in rural or desolate areas, often alone, where concealment, cover and egress is not an option."

If drug smugglers knew border agents were not allowed to shoot at their vehicles, it argues, more drivers would try to run over agents.

The authors of the report had this to say in response to the CBP's speculative assertion (spearheaded by CBP union reps, who have stated that they will "oppose any restriction on CBP officers' use of force").

"It should be recognized that a half-ounce (200-grain) bullet is unlikely to stop a 4,000-pound moving vehicle, and if the driver … is disabled by a bullet, the vehicle will become a totally unguided threat," it says. "Obviously, shooting at a moving vehicle can pose a risk to bystanders including other agents."

So, while the new guidance lays out some common sense rules in hopes of decreasing the number of deadly shootings, some feel it still doesn't go far enough. The ACLU is recommending the use of body cameras to ensure each use of force is properly documented. Zoe Lofgren has called for more transparency from the agency itself, which has still refused to reveal how many officers (if any) received any sort of disciplinary action for inappropriate use of force.

The CBP obviously has transparency issues. Every effort was made to prevent this report from being made public, despite the CBP itself commissioning it. And, as we've covered earlier, the CBP has obscured the use of its drone "lending library" by failing to produce documents and heavily redacting those it did turn over in response to FOIA requests.

It's one thing for these agents to defend themselves against deadly force. It's quite another to put yourself in harm's way simply to justify the use of deadly force (the it's-coming-right-for-us loophole). If the agency is truly seeking to rid itself of its trigger-happy reputation, it needs to enforce these guidelines and open up its use of force track record to public scrutiny.

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]]>bringing-a-gun-to-a-rock-fighthttps://www.techdirt.com/comment_rss.php?sid=20140309/14362326506Thu, 6 Mar 2014 10:32:00 PSTHomeland Security Detained US Citizen Inside The US, Used Intercepted Emails To Quiz Her About Her Sex LifeMike Masnickhttps://www.techdirt.com/articles/20140305/17284126449/homeland-security-detained-us-citizen-inside-us-used-intercepted-emails-to-quiz-her-about-her-sex-life.shtml
https://www.techdirt.com/articles/20140305/17284126449/homeland-security-detained-us-citizen-inside-us-used-intercepted-emails-to-quiz-her-about-her-sex-life.shtmlrefusing to comment on any of it. Instead, CBP has relied on a cloak of secrecy to live outside the law, acting out what we've come to expect from authoritarian police states. Recently, the ACLU filed a lawsuit on behalf of a woman, Christine Von Der Haar, who is a senior lecturer at Indiana University, after CBP detained her at the airport.

She was not entering or leaving the country. She was not even boarding a flight. She merely accompanied a friend to the airport so that he could retrieve some computer equipment that he had shipped separately a few days earlier. After detaining Von Der Haar, CBP officials, who clearly had access to some of the emails Von Der Haar and her friend had sent back and forth, quizzed her about her sex life and if she was planning to marry the friend.

CBP appeared to be concerned that the friend, a Greek national named Dimitris Papatheodoropoulos, was trying to stay in the country illegally. Von Der Haar had first met Papatheodoropoulos 40 years earlier while studying abroad, and the two had recently reconnected thanks to the internet. Papatheodoropoulos had obtained a B1/B2 business/leisure visa to the US which actually let him enter and leave the country for a period of 10 years. He came to the US for business, but while there also wished to visit Von Der Haar since they'd been catching up online.

After detaining and questioning Papatheodoropoulos for some time, CBP officials took Von Der Haar into another room and started asking questions specific to the emails between the two of them. According to the lawsuit:

Given that Mr. Papatheodoropoulos had retained his hard drive that contained the emails, the only way that the Customs and Border Protection Agents could have reviewed the emails is for someone to have surreptitiously monitored the communications between Dr. Von Der Haar and Mr. Papatheodoropoulos and reported those communications to the agents questioning her. Defendant Lieba admitted that employees of the United States had read email communications between Dr. Von Der Haar and Mr. Papatheodoropoulos.

This raises all sorts of serious questions. As the post at Papers Please (linked above) notes:

CBP officers grossly exceeded their jurisdiction. Dr. Dr. Von Der Haar’s US citizenship was never questioned; she wasn’t trying to enter, leave, or ship and goods in or out of the country; and she was never accused of any crime. In general, immigration (as distinct from customs) offenses are handled by Immigration and Customs Enforcement (ICE) and the Border Patrol, not CBP. We’re curious what basis CBP will claim for its officers’ authority to detain and interrogate Dr. Dr. Von Der Haar or obtain her email.

The post also wonders how or why CBP got access to those emails, wondering if they were shared by the NSA. There are, of course, other possible explanations as various investigations may have resulted in CBP getting access to the emails separately, but it still raises serious questions about under what authority those emails were obtained and why she was then quizzed about her sex life.

The claims that officials made about Papatheodoropoulos were equally questionable. Again, from the lawsuit:

On June 8, 2012, Mr. Papatheodoropoulos was served
with notice that a proceeding was
initiated against him for removal from the United States. The notice stated, in relevant part:

You obtained your B1/B2 visa by misrepresenting your intentions to come to the
United States to wit; It is your intention to immigrate to the United States, you
abandoned your foreign residence, you intend to overstay your admission to the
United States.

None of this was true.

Mr. Papatheodoropoulos consulted with lawyers and the Greek Consulate in Chicago and
the removal action did not proceed.

His passport was returned to him and he left the United States at the end of August of
2012 and has not returned

The whole thing seems ridiculous yet again, and you can expect DHS to use its standard cloak of secrecy. I'm sure they'll argue some sort of state secrets or national security claim to try to get the entire case thrown out.

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]]>free-country?https://www.techdirt.com/comment_rss.php?sid=20140305/17284126449Mon, 3 Mar 2014 13:22:00 PSTHomeland Security Relies On Secrecy To Violate People's Rights And Humiliate Them At The BorderMike Masnickhttps://www.techdirt.com/articles/20140303/12143026410/homeland-security-relies-secrecy-to-violate-peoples-rights-humiliate-them-border.shtml
https://www.techdirt.com/articles/20140303/12143026410/homeland-security-relies-secrecy-to-violate-peoples-rights-humiliate-them-border.shtmlOn the Media about how one of its producers, Sarah Abdurrahman (a US citizen) along with her family and friends (all US citizens) were detained at the Canadian US border. The story involved all of them being detained under horrible conditions, with no one explaining anything to them. Their electronic devices were taken and searched. Some of them were physically searched multiple times. Perhaps the most horrific was that one guy was detained for longer while his family was told they could leave. When the guy's wife asked where her husband was, she was told that "an agency" was coming to "pick him up," implying that it was some sort of federal agency. It turned out that the guy had an unpaid ticket from seven years ago for a crooked license plate, and the Michigan State Police were called.

This past week, OTM spent its entire show looking at Homeland Security's secrecy at the border, kicking it off with replaying the original story by Abdurrahman. When I realized they were doing a full hour on the issue, I immediately figured that it would finally include some sort of explanation or some sort of response from DHS. But here's the depressing thing: months have gone by and DHS seems to simply be reveling in the fact that what it does at the border can be a black box, and it doesn't think it needs to answer to anyone. All of the attempts to find out about DHS's policies and how and why it treats people (especially American citizens) this way have resulted in dead ends. Even the few attempts by Congress to find out what's happening have gone nowhere.

The episode is actually quite depressing, because it appears that DHS has learned that as long as it keeps its collective mouths shut and with what appears to be no oversight, no one can find out about its policies or activities, and that allows it to act with impunity, to attack and humiliate people, to violate their rights, to leave people with lasting mental scars, often requiring therapy, and to never have to answer for any of it. As Trevor Timm, at the Freedom of the Press Foundation, notes, the number of stories of DHS using this process to intimidate American journalists is positively scary -- but at least journalists have an outlet for speaking out about it. An unknown number of others face equal or possibly worth treatment and there's absolutely no recourse at all.

Yes, some will say, that there are people out there who seek to attack the US. And, as such, Homeland Security's Customs and Border Patrol (CBP) officers have a big responsibility. But abusing that authority to create such a horrific results at the border clearly does more harm than good. On The Media is still asking people to use their "Shed Light on DHS tool" to demand Congress do something about this, and we highly encourage you to make use of it. It makes it easy to call your representative and raise these issues with them. If enough people call, perhaps Congress will finally stop abdicating its responsibility and start looking into DHS' abusive practices at the border. To make it even easier, we'll embed the tool below. Go test it out.

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]]>disappointinghttps://www.techdirt.com/comment_rss.php?sid=20140303/12143026410Tue, 11 Feb 2014 07:08:00 PSTGAO Report Finds That CBP, ICE Have No Project Management Skills, Relying On 1980s Equipment To Guard BordersTim Cushinghttps://www.techdirt.com/articles/20140210/08513026165/gao-report-finds-that-cbp-ice-have-no-project-management-skills-relying-1980s-equipment-to-guard-borders.shtml
https://www.techdirt.com/articles/20140210/08513026165/gao-report-finds-that-cbp-ice-have-no-project-management-skills-relying-1980s-equipment-to-guard-borders.shtml
Another GAO report is out, this time discussing the CBP's and ICE's failed attempts at modernizing their computer systems. As I've noted before, the word "scathing" often precedes the words "GAO report," most of which detail the sort of ineptitude that only large-scale bureaucracies can achieve. As I've also noted, the operative phrase following "scathing GAO report" is more often than not, "business as usual." Most GAO reports mention previous findings that were ignored, haphazardly implemented or back-burnered indefinitely.

The latest GAO report deals with two of our favorite government entities/targets, the CBP (Border Patrol) and ICE (IP industry go-fers). Both are under the purview of the DHS and both have computer systems sorely in need of an upgrade. The good news is… well, there's really no good news in here. The explanatory note helps set the stage.

DHS’s border enforcement system, known as TECS, is the primary system for determining admissibility of persons to the United States. It is used to prevent terrorism, and provide border security and law enforcement, case management, and intelligence functions for multiple federal, state, and local agencies. It has become increasingly difficult and expensive to maintain and is unable to support new mission requirements. In 2008, DHS began an effort to modernize the system. It is being managed as two separate programs by CBP and ICE.

TECS keeps our borders safe, fights terrorism, provides support for multiple levels of law enforcement… and has been undergoing modernization for more than a half-decade. This should be disheartening enough -- an outdated system is being used to secure a nation, a system that can't even keep up with current demands. But it gets so much worse as the report goes on.

The schedule and cost for the Department of Homeland Security’s (DHS) border enforcement system modernization program known as TECS Mod that is managed by Customs and Border Protection’s (CBP) continue to change; while the part managed in parallel by Immigration and Customs Enforcement (ICE) is undergoing major revisions to its scope, schedule, and cost after discovering that its initial solution is not technically viable.

CBP’s $724 million program intends to modernize the functionality, data, and aging infrastructure of legacy TECS and move it to DHS’s data centers by 2016. To date, CBP has deployed functionality to improve its secondary inspection processes to air and sea ports of entry and, more recently, to land ports of entry in 2013. However, CBP is in the process of revising its schedule baseline for the second time in under a year. Further, CBP has not developed its master schedule sufficiently to reliably manage work activities or monitor program progress. These factors raise questions about the certainty of CBP’s remaining schedule commitments.

If everything works out according to, well, normally I'd say "plan" right here but it certainly appears that nothing resembling a "plan" is actually in place, it will be eight years from start-to-finish on the TECS modernization. And that's the CBP only. And that's only if the CBP can keep it on schedule, which at this point, appears to be something it can't actually do.

Then there's ICE, running its own parallel update to TECS, and failing just about as spectacularly as the CBP.

Regarding ICE’s $818 million TECS Mod program, it is redesigning and replanning its program, having determined in June 2013 that its initial solution was not viable and could not support ICE’s needs. As a result, ICE largely halted development and is now assessing design alternatives and is revising its schedule and cost estimates. Program officials stated the revisions will be complete in spring 2014. Until ICE completes the replanning effort, it is unclear what functionality it will deliver, when it will deliver it, or what it will cost to do so, thus putting it in jeopardy of not completing the modernization by its 2015 deadline.

Five years after TECS mods is put in motion, ICE decides the modernization won't work. Six years later, it's promising a new estimate by spring of 2014. The previous best guess was completion in seven years, but the GAO notes that this end date is highly improbable considering work has been completely halted to "assess design alternatives." A realistic scenario most likely puts modernization completion a decade out from the start date, at which point one has to wonder if the new system will be outdated before it even goes completely live.

A few pages later the GAO points out that the system being upgraded dates back to the 1980s and several government entities rely on it for mission-critical data. However, "archaic" doesn't mean "cheap." The CBP estimates licensing and maintenance on its TECS system runs $40-60 million per year. Sadly, this expensive, outdated system can't even keep up with written languages that have been around for hundreds and thousands of years.

The current TECS system uses obsolete technology, which combined with expanding mission requirements, have posed operational challenges for CBP and others. For example, users may need to access and navigate among several different systems to investigate, resolve, and document an encounter with a passenger. In addition, CBP identified that TECS’s search algorithms do not adequately match names from foreign alphabets.

Seems like a Border Control agency might need a system that can parse foreign alphabets accurately. Foreigners are its main concern. You would think an issue like this, which could lead to misidentification of innocent people as threats or vice versa would be a chief concern. (I'm sure the DHS/CBP are more concerned with the latter than the former, but it's still a big hole in their ability to "secure" the nation's borders.)

What's even sadder about this "foreign alphabet" issue is the fact that the GAO had to list it as a recommendation. This means the CBP had no current plans in place to patch this critical hole in its TECS system.

The CBP keeps promising a 2015 date for delivery of the updated system, but the more the GAO digs, the less it believes it has any chance of meeting this deadline. The agency apparently can't be bothered to follow simple best practices to help guide the modernization project to completion.

CBP is in the process of revising its schedule baseline for the second time in under a year, making it unclear when the program ultimately intends to deliver needed functionality. Exacerbating this situation is the fact that CBP has not developed its master schedule sufficiently to effectively manage work activities or monitor the program’s progress.

Not only that, but nothing's linked together in the shambolic project management the CBP has slapped together. A delay elsewhere in the project won't be reflected by current budget and date estimates, which will pretty much dump the project into the "it'll be done when it's done" category. All the while, tax dollars are being pumped in to maintain a system that can't keep up with what was asked of it a half-decade ago.

How does a project like this slip into a mismanaged mess without any cohesive guiding force? Well, if the agency behind the project feels like it isn't a job worth doing, it has plenty of ways to ensure the job will never get done.

Program officials stated these deficiencies existed because the program has only two staff members with skills needed to properly develop and maintain the schedules, and that fully documenting all the dependencies would be time consuming, and in their view, not sufficiently important to warrant the additional resources necessary to complete them.

An agency, one tasked with The Most Important Job (national security), can't even be bothered to entrust modernization of a computer system dating back to the 1980s to more than two people. And when pressed, it can't even be bothered to care that these limits will result in excess expenditures and endless delays.

Things aren't much better on the ICE side.

Instead of continuing with the existing technical solution, the program manager explained that ICE would scrap a significant portion of the work done to date and start over. As a result, ICE halted most development work in June 2013 and has since been assessing different design and technical alternatives. In January 2014, ICE reported that it had rebaselined its program requirements and that it anticipates having its revised cost and schedule estimates finalized this coming spring. Nevertheless, given the time lost in developing the current technical solution, as well as the already reduced program scope, ICE cannot say what specific features it will release to users, when this functionality will be delivered, or how much such efforts will cost. As such, ICE is at significant risk of not achieving independence from the existing system by 2015.

So, ICE has basically informed the GAO that it has no idea whether the upgraded system, if and when it arrives, will be capable of meeting the demands of the agency. It has already made one false start and scrapped that entirely, rather than used whatever gains it achieved as a new starting point. The report delves a little deeper and details just how much ICE scrapped before starting over, and why.

In ICE’s case, management weaknesses and the lack of appropriate guidance for the program’s requirements management process led to technical issues, testing failures, and ultimately, the deferral and/or deletion of about 70 percent of the program’s original requirements. ICE issued new requirements guidance for the program in March 2013 that is consistent with leading practices, but has yet to demonstrate that these have been fully implemented.

ICE will now move forward on a new modernization plan, one that looks to be handled no better than the one it scrapped in 2013. Both agencies seemingly have no idea how to run a project of this scope (and have shown little interest in doing so). If either of these agencies were private businesses, they'd already be dead and long-forgotten. Even those tasked with evaluating ICE/CBP's modernization plans seem to be unqualified to do the job.

In its most recent program health assessments, the Enterprise Business Management Office partially based its rating of moderately low risk on CBP’s use of earned value management; however, the program manager stated to us that the CBP program is not utilizing earned value management because neither it nor its development contractor had the capability to do so. Similarly, even though ICE had not reported recent cost or schedule data for its program—an issue that may signal a significant problem—the Office of the CIO rated ICE’s program as medium risk. The reliance on incomplete and inaccurate data raises questions about the validity of the risk ratings.

The GAO took its findings up the bureaucratic ladder to the DHS, which didn't seem to be very troubled by the bumbling incompetence of the agencies under its purview.

DHS concurred with all but one of our recommendations, disagreeing with the recommendation regarding the weaknesses in CBP’s schedule. In response, DHS stated that CBP’s scheduling efforts for TECS Mod were sound. However, given the weaknesses in CBP’s master schedule, we continue to believe that management will be unable to determine how a slip in the completion date of a particular task may affect the overall project or program schedule, and thus, absent any changes, continuing to use it as a tool to track progress will remain ineffective.

In conclusion, the GAO found plenty of money wasted and nothing to show for it.

[A]fter spending nearly a quarter billion dollars and over 4 years on its two TECS Mod programs, it remains unclear when DHS will deliver them and at what cost. While CBP’s program has delivered one of the five major projects that comprise the program, its commitments are being revised again and the master schedule used by the program to manage its work and monitor progress has not been fully developed.

The $250 million is more than one-quarter of the CBP's total estimated budget for its TECS overhaul. At this point, it's still basically at square one and is doing absolutely nothing to ensure the project stays on track or within budget. ICE's expenditures aren't broken out separately, but judging from its decision to scrap one attempt entirely and start over, there's little doubt that its modernization program is doomed to the same fate at the CBP's.

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]]>seems-like-a-national-security-issue,-non?https://www.techdirt.com/comment_rss.php?sid=20140210/08513026165Fri, 31 Jan 2014 07:33:00 PSTHomeland Security Redacts Drone Info It Already Released Publicly In Report To CongressMike Masnickhttps://www.techdirt.com/articles/20140130/15574726054/homeland-security-thinks-information-it-already-released-publicly-about-drones-must-be-redacted-congress.shtml
https://www.techdirt.com/articles/20140130/15574726054/homeland-security-thinks-information-it-already-released-publicly-about-drones-must-be-redacted-congress.shtmlquite arbitrary, and when the same document is released multiple times, the redactions can be totally different. However, the latest screw up along those lines is quite incredible. Last summer, Homeland Security's Customs and Border Patrol sent EFF a bunch of records in response to EFF's FOIA lawsuit concerning CBP's use of drones (CBP later "found" additional records it had neglected to pass along).

Those documents were certainly interesting, but perhaps more interesting (and troubling) is that last fall, the Homeland Security and Governmental Affairs Committee (HSGAC) in Congress had asked DHS for similar information, including "all mission logs related to U.S. Customs and Border Patrol's (CBP) drone program from 2010 to 2013." DHS eventually handed over that information, including many of the same documents it released to the EFF, which were shared publicly. Except... the documents it gave to Congress had many more redactions than the ones they released to EFF.

Senator Tom Coburn's staff noticed this, and thought it was, well, rather odd, that DHS seems to think that the public can handle the information, while the relevant oversight committee in Congress cannot. Coburn has now sent a letter asking about the differences:

DHS insisted these documents were so sensitive they could not be produced without
explicit promises they would be handled with utmost care, and reviewed only by Committee
staff. The Department further requested the Committee promise not to release any document
without receiving permission from DHS, and to return or destroy all documents when they had
been reviewed. The Committee declined to oblige this virtually unprecedented request.

The documents DHS produced are extensively redacted. DHS claims it redacted
information relating to activities by other agencies. The release of that information to Congress,
it stated, is "under review," presumably with the other agencies.

My staff has reviewed the logs DHS produced for calendar year 2010. From this limited
review, it appears that DHS has redacted information in the documents it provided to the
Committee that is not redacted in the same documents DOJ released publicly.

For 2010 alone, my staff has tallied at least 20 instances in which the publicly-released
documents appear to contain legible passages which are redacted entirely or in large part from
the documents DHS provided the Committee. In other words, DHS appears to have chosen to
withhold information from Congress which the DOJ -- and, we must assume, DHS -- has
determined was appropriate to share with the American public. I have attached examples to this
letter for your review.

Also of concern is the apparent lack of coordination between DHS and outside agencies,
particularly the Department of Justice. DHS stated to the Committee that the passages it
redacted were "pending review" with an outside agency. However, a comparison of the redacted
passages with the publicly-released documents reveals that several of those passages relate to
support for DOJ components, including the FBI. If the DOJ compels public release of
documents detailing activities on behalf of its own component, and the documents are
subsequently released to the public, it is not clear why DHS would later withhold the same
information from Congress in order to consult with DOJ.

Oh, also, Coburn's staff noticed that some of the documents included don't appear to have been given to EFF at all, raising a separate question: that even among the newly found documents that DHS is still withholding pertinent information.

Of secondary concern but still significant, my staff noted several instances in which
information that was provided to Congress does not seem to appear, even in redacted form, in the
public documents released to the public interest group, suggesting that information may have
been withheld in full from the organization without explanation or accounting.

Not surprisingly, Coburn is... not pleased with DHS over this.

The Department's conduct in this matter has impacted the Committee's ability to conduct
its Constitutional responsibilities to oversee DHS operations. It has delayed access to relevant
documents, and what it has provided falls short of what it is required to share with anyone, let
alone in response to a Congressional request.

For over a year, this Committee has pressed the Department for more information
regarding its unmanned aerial vehicle operations. These improperly redacted documents raise
even more questions. If these vehicles are being operated in accordance with U.S. laws and in
support of the Department's statutory mission, the lawfulness and efficacy of their operations
should be easily demonstrable. This exercise may be said to demonstrate many things, but it
does not demonstrate efficiency or transparency. Congress and the American people have a right
to expect more from a Department which asks to be trusted with powerful tools and great
authorities.

After all this, Coburn orders DHS to hand over "a full, unredacted set of the documents" as soon as possible.

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]]>oopshttps://www.techdirt.com/comment_rss.php?sid=20140130/15574726054Wed, 15 Jan 2014 13:18:37 PSTCBP 'Discovers' An Additional 200 Drone Flights It Didn't Originally Include In Its FOIA ResponseTim Cushinghttps://www.techdirt.com/articles/20140115/09150425884/cbp-discovers-additional-200-drone-flights-it-didnt-originally-include-its-foia-response.shtml
https://www.techdirt.com/articles/20140115/09150425884/cbp-discovers-additional-200-drone-flights-it-didnt-originally-include-its-foia-response.shtml
The EFF is still uncovering more usage of CBP (Customs and Border Protection) drones by other agencies and far away from what anyone would consider to be the "border." The CBP apparently "forgot" to list several other flights on the tally sheet forced out of its hands by the EFF's FOIA lawsuit.

Customs & Border Protection recently “discovered” additional daily flight logs that show the agency has flown its drones on behalf of local, state and federal law enforcement agencies on 200 more occasions more than previously released records indicated.

Last July we reported, based on daily flight log records CBP made available to us in response to our Freedom of Information Act lawsuit, that CBP logged an eight-fold increase in the drone surveillance it conducts for other agencies. These agencies included a diverse group of local, state, and federal law enforcement—ranging from the FBI, ICE, the US Marshals, and the Coast Guard to the Minnesota Bureau of Criminal Investigation, the North Dakota Bureau of Criminal Investigation, the North Dakota Army National Guard, and the Texas Department of Public Safety.

The new data brings the number of flights up from 500 to 700 over a two-year period and adds several new names to the list of patrons of the CBP's drone lending library. Unfortunately, lawsuit or not, the CBP still refuses to release the names of some of the law enforcement agencies which have borrowed its drones, claiming (of course) that doing so would "jeopardize ongoing investigations." In some cases, this may be true, but as the EFF points out, there are others where naming names wouldn't do much to narrow down when and where the drones were used.

[A]s we pointed out in our summary judgment brief, disclosing that CBP was working with, for example, the Pima County, Ariz. Sheriff’s Department would not be specific enough to affect any particular criminal operation. It would hardly be surprising that CBP was working with Pima County because it shares a border with Mexico. It is also—at 9,200 square miles—one of the larger counties in Arizona and has one of the highest crime rates of any county in the country—a rate of 4,983 crimes per 100,000 people. Given the large geographic size of and crime rate in this county and others like it, it is hard to imagine that releasing information about which county sheriff’s department CBP is working with would enable suspected criminals in the area to link CBP’s drone surveillance to their particular criminal activity.

Not only is the usage more widespread than previously indicated by the CBP's first response, but the use of sophisticated technology meant for war zones has been deployed along our borders as well as potentially far inland. The EFF notes that the VADER surveillance system, which was developed for use in the war in Afghanistan and can detect the presence of people from 25,000 feet in the air, has been in use by the CBP since 2011 and has been used by 30 other agencies since that point.

Equally as troubling, considering the growing number of agencies using the CBP's drones, is the fact that data and info gathered is likely being held onto indefinitely.

CBP states in its PIA [Privacy Impact Assessment] that it stores data unassociated with a particular investigation for no more than 30 days, but much, if not most of this data will be associated with an investigation and may therefore be stored indefinitely—even if it includes footage of property, vehicles and people unassociated with the investigation.

As we've covered before, many law enforcement agencies are deploying drones and other surveillance technology well ahead of crafting usage guidelines and privacy considerations. Borrowing a drone indicates the agency likely doesn't already have one -- which also indicates it doesn't have anything in place to govern its use or disposal of unneeded or incidental data. Anything deemed potentially relevant will be kept and agencies -- especially those without rules on the books about drone usage -- are under no self-imposed obligation to rid themselves of incidental data.

The EFF has released an updated compilation of CBP drone flights based on the CBP's "discoveries" with the new information helpfully highlighted, including the addition of a mysterious entity designated only as "Local PD Officer." The CBP's inability to include all "responsive" info in its first release (back in July of last year) means this new data dump probably isn't complete either. Refusing to release names of the law enforcement agencies taking advantage of the CBP's seemingly indiscriminate loaning program does nothing to prevent future abuse by providing cover for agencies without surveillance guidelines or controls in place.

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]]>it's-amazing-what-a-little-legal-battle-can-do-for-responsivenesshttps://www.techdirt.com/comment_rss.php?sid=20140115/09150425884Tue, 10 Dec 2013 13:08:19 PSTRep. Peter King's Office Suggests NPR Producer Lied About Being Detained At Border By DHSMike Masnickhttps://www.techdirt.com/articles/20131209/13560825507/rep-peter-kings-office-suggests-npr-producer-lied-about-being-detained-border-dhs.shtml
https://www.techdirt.com/articles/20131209/13560825507/rep-peter-kings-office-suggests-npr-producer-lied-about-being-detained-border-dhs.shtmlOn the Media, Sarah Abdurrahman and many of her friends and family (all of whom are American citizens), were detained by US customs and border patrol (CBP) officials at the US Canadian border for many hours with no explanation. Their treatment was horrific, and worse, no one at DHS seems to have any interest in explaining what happened or why. On the Media then created a cool crowdsourcing tool asking people to call their Congressional representatives to try to get answers.

The latest report involves some of the people who have called and what sort of response they got back. Not surprisingly, so far, not much has come of the effort, as no one in Congress seems particularly interested. However, I did want to call out one particular interaction, involving Rep. Pete King's "new media guy" who a caller reached. The caller, Philip Elmer-Dewitt, explained Sarah's story, and King's staff apparently got confrontational. According to the caller:

But, basically his answer was that Sarah should call her representative and that's all there was to it.

Of course, it's worth remembering that Rep. Pete King famously was very supportive of IRA terrorists, but now argues that Ed Snowden and Glenn Greenwald are "traitors" and even that Greenwald should be prosecuted (based on completely false claims that King appears to have made up himself). He's also claimed that calling the NSA's activities "snooping" or "spying" amounts to slander. Now, apparently, his staff are getting confrontational with constituents asking rather basic questions about how DHS is treating American citizens at the border. Makes you wonder whom Rep. Peter King actually thinks he's representing.

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]]>gotcha-momenthttps://www.techdirt.com/comment_rss.php?sid=20131209/13560825507Tue, 10 Dec 2013 07:48:19 PSTDHS Interrogates NY Times Reporters At Border, Then Denies Having Any Records About ThemMike Masnickhttps://www.techdirt.com/articles/20131209/14020025509/dhs-interrogates-ny-times-reporters-border-then-denies-having-any-records-about-them.shtml
https://www.techdirt.com/articles/20131209/14020025509/dhs-interrogates-ny-times-reporters-border-then-denies-having-any-records-about-them.shtmlUK airports detaining and interrogating journalists? According to a new lawsuit from two NY Times reporters, they were also pulled aside and interrogated by Homeland Security officials multiple times concerning their own reporting efforts. The two reporters, Mac William Bishop and Christopher Chivers were apparently pulled out for special interrogation at JFK.

Among other things, Plaintiffs seek records used or created by DHS employees in respect to the questioning of Plaintiffs at JFK Airport earlier this year. Plaintiffs were subject to segregated questioning by DHS employees at JFK on May 24, 2013, as they prepared to board an international flight for a work assignment as journalists. Subsequently, on June 6, 2013, Mr. Bishop was subjected to further segregated questioning by DHS employees at JFK as he returned to the United States.

Given this, the two journalists filed Freedom of Information Act (FOIA) requests on records pertaining to themselves... and got back absolutely nothing. After playing hot potato with the FOIA requests between different DHS agencies, the reporters basically got back messages saying that there were no records on either.

On September 27, 2013, ICE denied the Bishop Request. ICE reported in a "final response" that the unite had conducted a search and found no responsive documents.

On October 28, 2013, Mr. Bishop appealed ICE's denial. In his appeal letter, Mr. Bishop said it was "inconceivable that DHS has no records pertaining to [him]" as someone who is "a frequent international traveler." He pointed out that on June 6, 2013 he had answered questions for DHS employees in a private room at JFK, and those answers were recorded on a computer.

On November 18, 2013, ICE denied Mr. Bishop's administrative appeal, finding that the agency had done an adequate search.

As for the TSA, that unit of DHS informed Mr. Bishop by letter on July 31, 2013 that his "request was too broad in scope." TSA required more information before processing the request.

On August 9, 2013, Mr. Bishop, through counsel, responded by letter. He restated the initial request and asserted that no legal authority supports the proposition that TSA could simply refuse to do the search.

More than two months later, on October 23, 2013, TSA told Mr. Bishop's counsel that it could not find the August 9, 2013 letter. Counsel subsequently provided a new copy of the letter and additional information about the June 6, 2013 questioning at JFK. There has been no further response from TSA.